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CHARLES  J.  HUGHES,  JR. 


GERALD  HUGHES 


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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


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SCHOOL  OF  LAW 
LIBRARY 


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STATE    CONTROL 


OF 


Trade  and  Commerce 


BY 


NATIONAL  OR  STATE  AUTHORITY 


BY 

ALBERT    STICKNEY 

OF  THE  NEW  YORK  BAR 


NEW  YORK 
BAKER,  VOORHIS  &  COMPANY 

1897 


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sfs/3 
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Copyright,  1S97, 
By  albert  STICKNEY. 


3^3701 


TABLE  OF   CONTENTS. 


PAGE 

Introductory 1-8 

Recent  decisions  at  variance  with  tendencies  of  the  law. 

Early  stages  of  English  law. 

Numerous  attempts  to  control  prices  by  statute. 

In  time  all  such  attempts  abandoned. 

Experience  of  this  country. 

Recent  growth  of  alarm  over  trusts. 

Distinction  between  public  and  private  employments. 

CHAPTER  I. 

The  Course  of  the  English  Law  as  to  State  Control 
OF  Private  Employments 9-83 

Early  English  statutes  regulating  trade,  labor  and  prices. 

Same  as  to  forestalling,  regrating  and  engrossing. 

Same  as  to  combinations  to  raise  prices. 

This  statute  nearly  a  dead  letter. 

Rex  V.  Journeyineti  Taylors  of  Cambridge. 

No  other  conviction  reported. 

Statutes  against  forestalling,  etc.,  repealed. 

Itex  V.  Waddington. 

Offenses  abolished. 

English  law  as  to  combinations  to  raise  prices  as  finally  established. 

Mogul  SteamsJiip  Co.  v.  McGregor. 

CHAPTER  II. 

The  Course   of   the   English   Law   as  to   Public    Em- 
ployments   84-88 

No  distinction  at  first  between  public  and  private  employments. 

That  distinction  now  well  established. 

Mann  v.  People  of  Illinois. 

Instances  of  public  employments. 

Innkeepers. 

Common  carriers. 

Statutes  relating  to  carriers. 


IV  TABLE   OF   CONTENTS. 

CHAPTER  III. 

PAGE 

The  Course  of  the  American"  Law  as  to   Private  Em- 
ployments UNTIL  CERTAIN^  KeCENT  DECISIONS 89-116 

The  course  of  the  law  down  to  the  statutes  against  conspiracies  in 

restraint  of  trade. 
No  such  crime  at  common  law. 
Blackstone's  "  Offences  against  Public  Trade." 
Forestalling,  Regrating,  Engrossing  and  Monopolies. 
Jlonopolies  not  properly  so  classified. 
All  these  offenses  created  by  statute. 
Such  English  statutes  never  a  part  of  our  law. 
Commonwealth  v.  Hunt. 

Our  own  experience  with  statutes  regulating  prices. 
Resolutions  of  Continental  Congress. 
Early  New  York  statute. 
Early  New  England  statutes. 
New  York  Revised  Statutes  as  to  Conspiracy. 
People  V.  Fisher. 
Other  cases. 
The  situation  of  the  New  York  law  as  it  was  prior  to  1893  stated. 

CHAPTER  IV. 

The   Course   of  the  American  Law  as  to  Public  Em- 
ployments   117-134 

Great  increase  in  degree  of  control  of  such  employments. 

Reasons  therefor. 

Railroad  companies. 

People  V.  New  Toi-k  Central  etc.  R.  R.  Co. 

Munn  V.  People  of  Illinois, 

Examples  of  statutes  regulating  public  employments. 

CHAPTER  V. 

Recent  Decisions   as  to   Contracts    in    Restraint   of 
Trade  or  Commerce 135-178 

People  V.  SJieldon. 

U.  S.  V.  Trans- Missouri  Freight  Association. 
Tiie  decisions  in  these  cases  stated. 
Preceding  positions  re-stated. 

Unsoundness  of  interpretation  of  Revised  Statutes  in  People  v.  SJieldon. 
Authorities  as  to  interpretation  of  statutes  which  change  the  com- 
mon law. 


TABLE   OF   CONTENTS.  V 

People  V.  Sheldon  quoted.  page 

Attempted  limitation  of  its  doctrine  to  articles  of  necessity. 

This  point  examined. 

Elements  of  crimes  in  general. 

The  crime  of  conspiracy. 

Unconstitutional  to  fix  prices  by  statute. 

Taylor  v.  Porter. 

Owner's  right  to  freedom  of  contract. 

And  to  fix  prices  either  individually  or  in  combination  with  othera. 

As  to  combinations  of  laborers. 

Commonwealth  v.  Hunt. 

Conspiracy  defined. 

Necessity  of  element  of  legal  inj  ury  to  others. 

Raising  of  prices  not  such  an  injury. 

The  rights  of  the  public. 

Instances  of  enforcement  of  contracts  in  restraint  of  trade. 

Diamond  Match  Co.  v.  Roeber. 

Other  cases. 

Impossibility  of  reconciling  People  v.  Sheldon  with  these. 

U.  S.  V.  Trans  Missouri  Freight  Association. 

Interstate  Commerce  Act. 

Anti-Trust  Act. 

Applicability  of  foregoing  argument  to  this  case. 

CHAPTER  VI. 

Some  General  Considerations 179-193 

Economic  questions  involved. 

Whether  any  public  damage  from  contracts  to  prevent  competition. 

The  answer  from  experience. 

The  best  regulation  of  prices. 

Groundlessness  of  fears  of  "  trusts. " 

The  increased  concentration  of  capital. 

Relations  of  labor  thereto. 

Needlessness  of  attempts  at  statutory  control. 

And  futility  of  such  attempts. 

Summary  of  positions  reached. 

Latest  proposed  legislation. 


TABLE   OF   STATUTES. 


English  : 

PAGE 

23  Ed w.  III.  (1349) 9-14 

"  Statute  of  Labourers  ;"  also  regulating  prices  of  victuals. 
25  Ed vv.  III.  Stat.  1  (1350) 15-20 

"  Statute  of  Labourers." 
25  Edw.  III.  Stat.  4  (1350). '6H 

Prescribing  the  penalty  of  him  that  doth  forestal  wares,  merchandise 
or  victual. 
37  Edw.  IIL,  c.  in.,  v.,  VL,  VIL,  VIIL,  XV.  (1362) 21-24 

Regulating  prices,  forbidding  engrossing,  forbidding  artisans  to  fol- 
low more  than  one  craft,  regulating  quality  of  goldsmiths'  work, 
and  the  diet  and  clothing  of  servants  and  others. 
14  Rich.  II.,  c.  IV.  (1390) 42 

"  To  keep  the  price  of  wools  the  better." 
14  Rich.  II.,  c.  V.  (1390) 43 

Prohibiting  the  export  of  certain  staples. 
14  Rich.  II.,  c.  VI.  (1390) 42 

Providing  that  English  merchants  shall  freight  only  in  English  ships. 
14  Rich  II.,  c.  VII  (1390) 43 

Prohibiting  the  export  of  tin  except  out  of  Dartmouth. 

4  Edw.  IV.,  c.  1  (1465) 35 

Regulating  the  length  and  breadth  of  cloths  to  be  sold,  and  providing 
that  no  cloths  wrought  bej^ond  sea  shall  be  brought  into  England. 

7  Edw.  IV.,  c.  1  (1468) 36 

Regulating  the  making  of  worsteds. 

2  and  3  Edw.  VL,  c.  15  (1549) 2,  43-45 

The  bill  of  conspiracies  of  victuallers  and  craftsmen. 

3  and  4  Edw.  VL,  c.  21  (1550) 38 

"  An  Act  for  the  buying  and  selling  of  butter  and  clieesc." 

Sand  6  Edw.  VL,  c.  14  (1552) 39,  40 

"  An  Act  against  Regrators,  Forestallers  and  Engrossers." 

5  and  6  Edw.  VI  ,  c.  15  (1552) 41 

"  An  Act  against  Regrators  and  Engrossers  of  Tanned  Leather." 
5  Eliz.,  c.  4  (1563) 24-34 

"  An  Act  containing  divers  orders  for  artificers,  labourers,  servants 
of  husbandry  and  apprentices." 
1  Jac.  L,  c.  6  (1603) 35 

Amending  the  5  Eliz.,  c.  4. 


VIU  TABLE   OF   STATUTES. 

PAGE 

21  Jac.  I.,  c.  3(1624) , 95 

As  to  monopolies. 
3  Wm.  and  Mary,  c.  12  (1691) 86 

Regulating  carriers  of  goods. 
12  Geo.  III.,  c.  71  (1772) 48 

Repealing  statutes  against  forestalling,  regrating  and  engrossing. 
5  Geo.  IV.,  c.  95  (1825) 45,  47 

Repealing  the  2  and  3  Edw.  VI.,  c.  15. 
2  and  3  Wm.  IV.,  c.  120  (1833) 86 

Regulating  stage  carriers. 
2  and  3  Vict. ,  c.  66  (1839) 86 

Amending  the  preceding. 
7  and  8  Vict.,  c.  24  (1844) 48 

Abolishing  the  offenses  of  forestalling,  regrating  and  engrossing. 
17  and  18  Vict.,  c.  31  (1854) 86 

Railway  and  Canal  Traffic  Act. 
36  and  37  Vict.,  c.  48  (1878) 88 

Regulation  of  Railways  Act. 
38  and  39  Vict  ,  c.  86  (1875) 35 

"Conspiracy  and  Protection  of  Property  Act;"  repealing  5  Eliz., 
c.  4. 

United  States : 

24  Stat,  at  Large  (c.  104  of  1887) 171 

Interstate  Commerce  Act. 
26  Stat,  at  Large  (c.  647  of  1890) 172 

"  An  Act  to  protect  trade  and  commerce  against  unlawful  restraints, 
and  monopolies." 

New  York  : 

Constitution  of  1777 137 

As  to  application  of  English  law  and  statutes. 
Laws  of  1778,  c.  34 100 

"  An  Act  to  regulate  the  wages  of  mechanicks  and  labourers,  the 
prices  of  goods  and  commodities,  and  the  charges  of  inn-holders 
within  this  State,  and  for  other  purposes  therein  mentioned." 
Laws  of  1788.  c.  46 137 

Providing  that  none  of  the  Statutes  of  England  shall  be  considered 
as  law  of  this  State. 
2  Revised  Statutes,  691  (1830) 109 

Defining  offense  of  conspiracy. 
Laws  of  1870,  c.  19 114 

Amending  the  preceding. 
Laws  of  1890,  c.  566 133 

Transportation  corporations  law. 


TABLE   OF   STATUTES.  IX 

TAOB 

Laws  of  1892,  c.  617 133 

Amending  the  preceding. 
Laws  of  1892.  Vol.  2,  p.  2129 130 

Defining  powers  of  Board  of  Railroad  Commissioners. 

Massachusetts  : 

Province  Laws  of  1776,  1777,  c.  14 101 

"  An  Act  to  prevent  Monopoly  and  Oppression." 
Province  Laws  of  1776,  1777,  c.  46 105 

Amending  and  "  more  effectually  carrying  into  execution"  the  pre- 
ceding. 
Province  Laws  of  1777,  1778,  c.  6 108 

Repealing  the  two  preceding. 
Province  Laws  of  1778-1779.  c.  31 108 

"  An  Act  against  monopoly  and  forestalling." 


TABLE   OF  CASES. 


A. 

PAGE 

Abbott  V.  Johnstown  R.  R.  Co.,  SON.  Y.  31 124 

Alger  V.  Thacher,  19  Pick.  51 161 

B. 

Bloodgood  V.  Mohawk  &  H.  R.  R.  R.  Co.,  18  Wend.  9 120 

Bolt  V.  Stennett,  8  T.  R.  606 127 

Bowen  v.  Hall,  6  Q.  B   D.  333 54,  58 

Bridgewater  Case  (unreported) 52 

Bromage  v.  Prosser,  4  B.  &  C.  247 57 

C. 

Capital  &  Counties  Bank  v.  Henty,  7  App.  Cas.  741 57 

Carrington  v.  Taylor,  11  East.  571 58-65 

Chappell  v.  Brockway,  21  Wend.  157 161 

Chasemore  v.  Richards.  7  H.  L.  C.  34.8 57 

Chic.  &K  W.  R.  R.  Co.  v.  People,  56  111.  365 123 

Clifford  V.  Brandon.  2  Camp.  358 58 

Commonwealth  v.  Boynton,  3  Law  Reporter,  395 96 

Commonwealth  v.  Carlisle,  Brightly,  36 97 

Commonwealth  v.  Hunt,  4  Mete.  Ill 96,  153 

Commonwealth  v.  Judd,  2  Mass.  329 96 

Commonwealth  ».  Pierpont,  3  Law  Reporter,  296 96 

Commonwealth  v.  Tibbetts,  2  :Nrass.  536 96 

Commonwealth  v.  Ward,  1  Mass.  473 96 

Commonwealth  v.  Warren,  6  Mass.  74 96 

Cousins  i?.  Smith.  13  Ves.  542 62,  70 

D. 

Diamond  Match  Co.  v.  Roeber.  106  N.  Y,  473 159,  165,  166,  167 

Dunlop?).  Gregory,  10  N.  Y^  241 161 

F. 

Farmers'  L.  &  T.  Co.  v.  Hemiug.  17  Am.  Law  Reg.  (N.  S.)  266 123 

Farrer».  Close,  L.  R.  4  Q.  B.  602 66 


XU  TABLE   OF   CASES. 

G. 

FAGS 

Garrett  v.  Taylor,  Cro.  Jac.  567 65 

Gregory  v.  Brunswick,  6  Man.  &  G.  205 58 

H. 

Hilton  V.  Eckersley,  6  E.  &  B.  47 62,  66,  71,  76,  80 

Hodge  V.  Neill,  107  N.  Y.  244 167 

Hornby  v.  Close,  L.  R.  2  Q.  B.  153 60 

Homer  i.  Graves,  7  Bing.  735 162 

Hutchins  v.  Hutchins,  7  Hill,  104 59 

I. 

Ind.  R.  R.  Co.  V.  State,  37  Ind.  489 128 

J. 

Johnston  Harvester  Co.  v.  Meinhardt,  9  Abb.  N.  C.  395 114 

K. 

Keble  v.  Hickringill,  11  Mod.  74 53,  58,  65 

L. 

Leslie  v.  Lorillard,  110  N.  Y.  519 164,  167 

Lough  V.  Outerbridge,  143  N.  Y.  271 169 

Lumley  v.  Gye,  2  E.  &  B.  216 54,  55,  58 

M. 

Master  Stevedores'  Association  v.  Walsh,  2  Daly,  1 113 

Matthews  v.  Associated  Press,  136  N.  Y.  333 166 

Messenger  v.  Pa.  R.  R.  Co.,  36  N.  J.  407 121 

Mirams,  Li  re,  L.  R.  1  Q.  B.  595  (1891) 76 

Mitchel  V.  Reynolds,  1  P.  Wms.  181 65,  66,  160,  161 

Mogul  Steamship  Co.  v.  McGregor,  L.  R.  21  Q.  B.  Div.  544 50,  51-57 

Mogul  Steamship  Co.  v.  McGregor,  L.  R.  23  Q.  B.  Div.  613 57-71 

Mogul  Steamship  Co.  v.  McGregor,  App.  Cas.  1892,  p.  35 71-82,  89, 

90,  135,  170 

Mulcahy  v  Regina.  L.  R.  3  H.  L.  306 63 

Munn  V.  People  of  Illinois,  4  Otto,  123 84,  124 

N. 

New  Brunswick,  etc.  R.  R.  Co.,  In  re,  1  P.  &  B.  667 123 

N.  J.  Nav.  Co.  V.  Mer.  Bank,  6  How.  382 127 

N.  Y.  C.  &  H.  R.  R.  R.  Co.  v.  People,  12  Hun,  195  ;  74  N.  Y.  302 123 

Noble  «.  Bates,  7  Cow.  307 161 


TABLE   OF   CASES.  Xlll 

O. 

PAGK 

O'Connell  v.  The  Queen.  11  CI.  &  F.  155 59-63 

Olcott  T.  Supervisors,  16  Wall.  678 120 


People  V.  A.  &  V.  R.  R.  Co.,  24  N.  Y.  261 123 

People  V.  Bush,  4  Hill.  133 148 

People  tJ.  Collins,  19  Wend.  56 118-123 

People  V.  Comrs.  of  Salem.  1  Cow.  23 123 

People  V.  Fanshawe.  137  N.  Y.  68 138 

People  V.  Halsey,  37  N.  Y.  344 118 

People  V.  N.  Y.  C.  etc.  R.  R.  Co.,  28  Hun,  543 118 

People  V.  North  River  Sugar  Refining  Co.,  121  N.  Y.  582 168 

People  V.  North  River  Sugar  Refining  Co.,  54  Hun,  354 169 

Peoples.  Palmer,  109  N.  Y.  110 138 

People  V.  Richards,  108  N.  Y.  137 138 

People  V.  Sheldon,  139  N.  Y.  251  135,  140,  146,  157,  169,  170,  178,  188 

People  el  rel.  v.  B.  &  A.  R.  R.  Co.,  70  N.  Y.  569 123 

People  ex  rel.  v.  D.  &  C.  R.  Co.,  58  N.  Y.  152 123 

People  ex  rel.  v.  Rochester  State  Line  R.  R.  Co.,  14  Hun,  373  ;  76  N.  Y. 

294 123 

Pettibone  v.  United  States,  148  U.  S.  203 156 

Price  V.  Green,  16  M.  &  W.  346 66 

Printing  Co.  v.  Sampson,  19  Eq.  Cas.  462 163 


R. 

Regina  v.  Daniell,  6  Mod.  99 70 

Regina*.  Druitt,  10  Cox.  C.  C.  592 53,  73 

Regina  v.  Parnell.  14  Cox.  C.  C.  508 59 

Regina  ?;.  Rowlands,  17  Q.  B.  671  54,  61,  64 

Rex  V.  DeBerenger,  3  M.  &  S.  67 52 

Rex«.  Eccles.  1  Leach  C.  C.  274  54,  70 

Rex  V.  Ivens,  7  C.  &  P.  213 85 

Rex  V.  Journeymen  Taylors  of  Cambridge,  8  Mod.  11 46,  47,  54,  97 

Rex  V.  Kimberty,  1  Le vinz,  62 69 

Rex  V.  Norris,  2  Ld.  Keny.  300 46,  49 

Rex  V.  Severn  &  Wye  Ry.  Co.,  2  Barn.  &  Aid.  646 123 

Rex  V.  Sterling,  1  Levinz,  126 69 

Rex  V.  Turner.  13  East.  228 53,  54,  70 

Rex  V.  Waddington,  1  East.  167 48,  61 

Richardson  v.  Mellish,  2  Bing.  252 76 

Rogers  c.  Rajendro  Dutt,  13  Moore,  P.  C.  209 57 

Rousillon  V.  Rousillon,  14  L.  R.  &  L.  Div.  351 162 


XIV  TABLE   OF   CASES. 

S. 

PAGE 

Skinner  v.  Gunton,  1  Wms.  Saund.  239 59 

States).  H   &  N.  H.  Ry.  Co.,  28  Conn.  533 123 

State  V.  N.  E.  R.  R.  Co.,  9  Richardson,  247 128 

State  V.  R.  R.  Co.,  37  Conn.  151 123 

Stowell  V.  Zouche 139 

T. 

Talcott  V.  Township  of  Pine  Grove,  1  Flippin,  U.  S   C.  C.  144 121,  123 

Tarleton  v.  M'GawIey,  Pealt,  N.  P.  C.  270 58,  65 

Taylor  v.  Porter,  4  Hill,  140 150,  188 

Tex.  &  P.  R   Co.  V.  Interstate  Com.  Comsn.  163  U.  S.  197 191 

Tode  V.  Gross,  127  N.  Y.  480 166 

U. 

U.  p.  R  R.  Co.  V.  Hall,  91  U.  S  343 123 

U.  S.  V.  E   C.  Knight  Company,  156  U.  S.  1 ....174 

U.  S.  V.  Trans-Missouri  Freight  Association,  166  U.  S.  290.  .135,  170,  176,  188 

W. 

White  V.  Wager,  33  Barb.  250  ;  25  N.  Y.  328 138 

Wickens  v.  Evans.  3  Y.  &  J.  318 67 

Wilkinson  v.  Leland,  3  Pet.  657 151 

Winsmore  v.  Greenbank,  Willes,  577 54 


STATE     CONTROL 


OF 


Trade  and  Commerce 


i:iSrTEODUCTORT. 


Recent  decisions  of  our  highest  legal  tribunals,  espe- 
cially the  United  States  Supreme  Court  and  the  New 
York  Court  of  Appeals,  holding  that  a  mere  combination 
of  common  carriers,  or  of  private  property  owners,  pro- 
viding for  the  fixing  of  rates  and  prices  for  their  own 
property,  by  one  common  authority  for  all,  constitutes  a 
crime,  are,  in  my  opinion,  so  far  at  variance  with  the  ten- 
dencies and  growth  of  English  and  American  law,  and 
are  so  hopelessly  in  conflict  with  the  fundamental  prin- 
ciples of  the  law  of  property  under  a  modern  constitu- 
tional government,  that  an  unusual  degree  of  interest 
attaches  at  the  present  time  to  an  examination  of  the  law 
applicable  to  such  combinations. 

It  will  be  found  that  much  light  will  be  thrown  on  the 
questions  involved,  by  a  short  review  of  the  history  of 
the  English  and  American  law  relating  to  state  control 
of  trade  and  commerce.  Careful  investigation  will  show, 
that  the  recent  statutes  under  which  the  decisions  allud- 
ed to  have  been  made,  are  not  novelties  ;  that  they  are 
merely  revivals  of  old  attempts  to  protect  the  community 
— by  statute — against  dangers  of  the  imagination  ;  and 
we  shall  find  the  strongest  reason  for  believing  that  here 
again  history  will  repeat  itself,  and  that  the  legislation 
and  judicial  interx^retation  of  the  jDresent  will  follow  the 
same  course  with  the  legislation  and  judicial  interpreta- 
tion of  the  past. 

The  rudimentary  stages  of  the  growth  of  the  Eng- 
lish law  abounded  in  attempts  to  restrict  and  control 
trade  and  commerce  by  statute.  Those  attempts  took 
various  forms.     The  most  frequent  consisted  in  the  pas- 


2  INTRODUCTORY.    ' 

sage  of  statutes  regulating  prices,  of  labor  and  mer- 
chandise. Other  statutes,  as  to  trade  and  commerce  of 
specific  classes,  were  completely  prohibitory.  Such  were 
the  statutes  prohibiting  the  export  of  gold  and  silver,  of 
wheat  and  other  grains,  of  wool,  of  tools  and  machinery  ; 
and  forbidding  the  departure  of  artificers  from  the  king- 
dom to  work  in  foreign  countries.  Violations  of  these 
statutes  were  made  crimes,  and  were  punishable  by  fine 
and  imprisonment. 

One  class  of  these  statutes,  while  not  fixing  specific 
prices,  for  specific  classes  of  merchandise,  endeavored  to 
prevent  any  attempts  to  raise  prices,  whether  by  single 
individuals,  or  by  combinations  of  individuals.  "  En- 
grossing," as  it  was  termed  in  the  old  statutes,  which 
consisted  only  in  buying  and  holding  in  quantity,  with 
a  view  to  a  subsequent  sale  at  an  advance  in  price — 
the  object  of  nearly  all  wholesale  buying — was  made  a 
crime  ;  whether  on  the  part  of  a  single  individual,  or  of 
individuals  in  combination,  was  immaterial.  The  old 
English  statutes  on  this  branch  of  the  law,  if  they  had 
been  enforced,  would  have  abolished  the  occupation  of 
wholesale  merchant  or  middleman,  and  would  have 
virtually  compelled  every  producer  to  be  his  own  sales- 
man. Trade  and  commerce,  as  they  exist  to-day,  and  as 
they  necessarily  must  exist  to  supply  the  needs  of  any 
large  community,  would  have  been  made  impossible. 

In  connection  with  the  statutes  of  the  classes  already 
mentioned  are  to  be  considered  statutes  against  conspira- 
cies, or  combinations,  to  raise  prices,  of  both  labor  and 
merchandise.  The  earliest  of  these  was  the  Statute  2  &  3 
Edw.  VI.,  c.  15,  which  made  it  a  crime,  for  certain  classes 
of  tradesmen  to  combine  to  raise  the  prices  of  the  com- 
modities in  which  they  dealt,  or  for  workmen  to  combine 
to  raise  the  prices,  or  limit  the  hours,  of  their  labor. 
These  statutes  were  part  of  the  general  scheme  of  state 
control,  of  labor,  trade,  and  commerce. 

In  time  all  these  attempts  to  control  prices  and 
labor  were  abandoned.     From  the  earliest  date,  the  re- 


INTRODUCTORY.  3 

ported  cases  of  indictments  for  mere  combinations  to  raise 
the  prices  of  the  combiners'  own  property,  whether  of  their 
labor  or  their  mercliandise,  are  very  few.  Where  their 
purpose  was  the  doing  of  legal  injuries  to  others,  the  law 
M^as  frequently  invoked  to  punish  such  combinations. 
But  where  the  purpose  of  single  individuals,  or  of  com- 
binations of  individuals,  was  limited  to  the  mere  raising 
of  the  price  of  their  own  property,  either  their  labor  or 
their  merchandise,  the  reports  of  cases  in  the  English 
courts  show  an  almost  entire  absence  of  even  so  much  as 
an  attempt  to  enforce  those  old  statutes.  In  time,  by 
common  consent,  the  statutes  making  such  combinations 
criminal  became  obsolete.  It  was  found  by  experience, 
that  they  could  not  be  enforced,  and  that  their  mere 
existence,  with,  occasional  sporadic  attemjDts  at  enforce- 
ment, did  more  harm  than  good.  The  only  effect  of 
such  attempts  was  to  cause  temporary  annoyance  to 
that  part  of  the  community  which  had  an  especial 
regard  for  the  law.  In  the  end,  the  statutes  were  re- 
pealed. The  final  outcome  has  been,  in  England,  that 
it  is  to-day  the  law,  as  worked  out  by  the  courts 
and  the  legislature  together,  that  there  is  virtually  no 
limitation  or  restriction,  directly  or  indirectly,  on  the 
right  of  every  individual  and  corporation,  either  singly  or 
in  combination  with  others,  to  dispose  of  their  own  labor 
and  merchandise  at  their  own  free  will.  In  England  to- 
day the  law  is  well  established,  that  the  ownership  of 
property,  of  all  ordinary  kinds,  comprises  not  only  the 
right  of  free  use  (always  subject  to  the  proviso  that  its 
use  is  to  be  in  such  manner  as  not  to  interfere  with  the 
rights  of  others),  but  also  the  right  of  free  sale,  at  the 
will  of  the  owner,  whether  the  property  be  labor  or  mer- 
chandise, and  whether  the  owner's  will  be  exercised  sepa- 
rately or  in  combination  with  other  individuals. 

The  experience  of  this  country  has  been  somewhat  dif- 
ferent from  that  of  England.  In  our  early  colonial  legal 
history  there  is  an  almost  entire  absence  of  attempts  to 
fix  prices,  of  either  labor  or  merchandise,  or  to  interfere 


4  INTRODUCTOKY. 

in  any  degree  with  the  full  freedom  of  the  citizen  in  the 
exercise  of  his  lawful  right  to  sell  his  own  labor,  and  his 
own  merchandise,  on  his  own  terms,  or  to  refuse  to  sell  it 
at  all.  Such  attempts,  so  far  as  they  have  come  under 
my  notice,  were  first  made,  at  least  to  any  considerable 
extent,  during  the  w^ar  of  the  revolution,  when  the  de- 
preciation of  the  continental  and  state  paper  currencies, 
in  connection  with  the  severe  burden  of  public  expendi- 
tures, caused  such  widespread  distress,  that,  by  a  com- 
mon impulse,  resort  was  had  to  legislation,  in  different 
forms,  in  the  attempt  to  alleviate  that  distress.  In  the 
year  1777,  we  find  action  taken  in  the  Continental  Con- 
gress, and  in  several  of  the  state  legislatures,  looking  to 
a  protection  of  the  community  by  legislation,  against  the 
advance  in  the  prices  of  labor  and  merchandise,  and  the 
fall  in  the  prices  of  the  different  kinds  of  paper  money. 
Tliat  action  took  different  forms.  But  those  forms,  sub- 
stantially all  of  them,  consisted  in  attempts  to  regulate 
prices  by  statute.  Very  speedily  they  were  found  to  be, 
not  only  ineffectual  to  good,  but,  on  the  contrary,  effec- 
tual only  to  evil.  For  that  reason,  the  greater  number  of 
them  were  promptly  repealed.  Such  as  were  not  repealed, 
if  any  such  there  were,  were  by  common  consent  ig- 
nored. 

Thereafter  there  was  in  this  country  virtually  an  entire 
abandonment  of  all  attempts  by  statute,  or  by  the  action 
of  government  in  any  form,  to  interfere  with  the  freedom 
of  contract  in  private  employments.  That  condition  con- 
tinued until  a  recent  period,  when  there  has  grown  up 
a  widely  spread  alarm  over  the  modern  large  combina- 
tions of  capital,  called  "trusts,"  which  have  been  at 
times  stigmatized  as  "  monopolies."  These  large  com- 
binations of  capital  have  revived  the  vague  dread,  felt 
in  antique  rudimentary  times,  of  an  oppression  of  the 
entire  community  by  an  excessive  raising  of  the  prices 
of  merchandise  at  the  hands  of  large  capitalists.  As  mat- 
ter of  historical  fact,  even  in  early  times,  in  both  England 
and  this  country,  notwithstanding  the  extremely  imx^er- 


INTKODUCTORY.  5 

feet  development  of  the  machinery  of  transportation  whicli 
then  existed,  no  substantial  practical  evil  ever  resulted 
from  any  attempt  to  merely  raise  prices,  of  hd)or  or 
merchandise,  on  the  part  of  either  single  individuals  or 
combinations  of  individuals.  Such  attempts  soon  found 
their  own  levels,  and  their  own  limitations.  But  to-day, 
with  our  vast  modern  development  of  the  science  and 
machinery  of  transportation,  when  the  markets  of  the 
whole  world  have  largely  become  one,  when  a  rise  in  the 
price  of  any  kind  of  merchandise  immediately  causes 
an  increase  in  supply,  with  a  decrease  in  demand,  and 
when  the  prospect  of  large  profits  invariably  draws  large 
amounts  of  fresh  capital  to  j)aying  investments,  there 
is  no  longer  any  danger,  from  any  attempt  to  enhance 
the  jOTces  of  merchandise,  whether  by  single  individuals, 
or  by  individuals  in  combination,  whether  to  single  in- 
dividuals, or  to  that  combination  of  individuals  which 
we  term  the  community.  Any  attempt  to  raise  the  price 
of  any  article  of  merchandise  immediately  impels  x)ur- 
chasers  to  curtail  their  consumption  ;  consequently  it  im- 
mediately curtails  the  demand ;  and  inevitably  it  soon 
brings  a  return  to  prices  that  are  reasonable.  Exx)erience 
shows,  in  times  recent  as  well  as  ancient,  that  any  attempt 
to  interfere  by  legislation,  or  by  the  arm  of  the  law,  with 
the  citizen's  full  freedom  of  contract,  in  fixing  the  price 
of  his  own  labor  or  merchandise,  either  singly  or  in  com- 
bination with  others,  is  wholly  needless,  and  is  produc- 
tive only  of  evil. 

This  fact  it  is»  which,  in  times  past,  both  here  and  in 
England,  has  been  the  real  cause  of  the  virtual  abandon- 
ment, until  recently,  of  attempts  to  interfere  with  the 
freedom  of  contract,  by  the  processes  of  law. 

This  same  fact  will — in  time — put  an  end  to  the  present 
series  of  such  attempts. 

Meantime,  in  view  of  the  revival  in  this  country  of 
legislation  of  like  character  with  the  old  English  statutes, 
it  becomes  important  to  ascertain  the  precise  condition  of 
the  law  regulating  such  attempts,  not  merely  for  the  pur- 


6  INTRODUCTOKY. 

poses  of  practising  lawyers,  but  for  legislators,  and  stu- 
dents of  political  science. 

In  order  to  fully  comprehend  the  law  of  to-day  on  this 
subject,  it  will  be  necessary  to  some  extent  to  examine  its 
previous  history,  through  the  different  stages  of  its  devel- 
opment, in  England  and  in  this  country. 

Before,  however,  beginning  such  an  examination, 
it  is  well  to  call  attention  to  one  fundamental  dis- 
tinction. That  distinction  is  the  one  which  exists  be- 
tween private  property  and  private  employments,  on 
the  one  hand,  and  a  class  of  property  and  employ- 
ments which  are  correctly  termed  public,  on  the  other, 
although  the  title  to  that  property  be  not  vested  in 
the  state,  and  the  employments  be  not  those  of  ordi- 
nary public  officials.  Reference  is  here  had,  of  course,  to 
railroads,  to  all  classes  of  public  highways,  and  to  all 
classes  of  common  carriers,  innkeepers,  and  the  keepers 
of  public  resorts.  From  a  very  early  jperiod,  the  state  has 
exercised  control,  in  one  form  or  another,  over  innkeep- 
ers and  common  carriers,  from  the  necessities  of  the  situa- 
tion, without  reference  to  any  other  fact  than  that  their 
employments  were  quasi-public,  and  that  state  control, 
to  some  extent,  was  necessary  for  the  full  protection  of 
the  ordinary  citizen.  Such  control  did  not  rest  on  the 
fact  that  innkeepers  and  common  carriers  held  any  fran- 
chise, or  any  property,  derived  from  the  state,  or,  so  far 
as  my  reading  goes,  from  any  fact  other  than  those  just 
stated.  In  later  years,  common  carriers  by  steam  and 
rail  have  found  it  necessary,  in  order  to  construct  their 
roads,  to  use  the  right  of  eminent  domain,  with  other  special 
rights  and  privileges  conferred  by  the  state.  This  fact 
has  furnished  an  additional  reason,  in  their  case,  for  hold- 
ing that  they  are  subject  to  state  control,  in  the  use  of 
their  rights,  privileges,  and  x^roperty.  But  in  cases 
where  there  is  an  entire  absence  of  any  grant,  or  franchise, 
or  other  property,  directly  conferred  by  the  state,  we 
still  lind  that  these  properties  and  employments  have  for 
a  long  time  been  subject  to  some  form  of  state  control,  by 


INTRODUCTORY.  7 

virtue  of  their  public  nature.  Such  common  carriers  are 
virtually  public  servants,  occupying  and  operating  the  peo- 
ple's  highways.  For  e^ery  reason,  therefore,  it  becomes 
necessary  that  they  should  be  subject  to  state  control. 
The  same  reasons  generally  apply  to  telephone  and  tele- 
grajDh  companies,  to  gas  and  electric  light  companies,  to 
ferry  companies,  to  turnpike,  plank  road,  and  bridge 
companies,  to  the  owners  of  elevators,  to  companies  for 
owning  and  operating  tramways,  pipe  lines  for  oil  and 
gas,  and  waterworks.  They  are  all  public,  in  their  nature 
and  uses  ;  and  nearly  all  of  them  exist,  and  get  their 
property,  or  part  of  it,  by  some  form  of  grant  from  the 
state. 

As  to  property  and  employments  of  this  public  nature 
the  tendencies  and  grow^th  of  the  law  are  in  a  precisely 
opposite  direction  from  those  which  apply  to  ordinary 
private  property  and  employments.  In  early  times,  the 
interests  of  these  common  carriers  were  of  comparatively 
slight  importance.  In  recent  times  they  have  increased 
to  an  enormous  extent.  The  railroad  employees  alone  in 
this  country  number  upwards  of  a  million  of  men.  The 
number  of  individuals  engaged  in  other  employments  of 
the  same  general  nature  is  very  large.  Public  control,  of 
these  properties  and  employments,  has  become  a  greater 
necessity  than  ever,  in  the  face  of  their  intimate  connec- 
tion at  every  point  with  the  daily  life  of  the  community. 

Public  control,  with  these  properties,  has  taken  the 
form  of  control,  both  of  the  use  of  the  properties,  and  of 
the  prices  of  such  use.  Such  control  is  a  necessity.  It  is 
recognized  as  such  by  all  competent  judges.  It  has  its 
legitimate  province,  and  its  legitimate  limitations.  It 
appears  to  be  increasing,  rather  than  decreasing.  The 
reason  is,  that  the  public  necessities  demand  such  in- 
crease. 

This  distinction,  between  public  and  private  properties 
and  employments,  will  be  found  to  be  fundamental.  It 
lies  at  the  bottom  of  all  sound  legislation  for  the  regula- 
tion of  properties  and  employments  of  all  kinds.     Espe- 


8  INTRODUCTOKT. 

cially  it  will  be  found  to  constitute  the  essential  and  con- 
clusive reason  in  favor  of  state  control  of  all  i)ublic  em- 
ployments, and  in  opjposition  to  state  control,  and  all 
attempts  to  interfere  with  the  fullest  freedom  of  con- 
tract, as  to  all  private  i3roperty  and  iprivate  employ- 
ments. 


CHAPTER   I. 

THE   COURSE    OF    THE    ENGLISH   LAW   AS    TO    STATE   CON- 
TROL  OF   PRIVATE   EMPLOYMENTS. 

In  the  early  stages  of  English  parliamentary  govern- 
ment, we  find  a  large  number  of  statutes  which  put  re- 
strictions of  many  kinds  on  the  freedom  of  the  individual 
citizen,  but  especially  on  his  right  to  choose  his  own  field 
of  labor,  and  his  right  to  make  his  own  price  for  his  own 
labor  and  merchandise.  In  time,  as  has  been  stated,  all 
these  restrictions  came  to  be  practically  ignored  ;  and 
most  of  them  were  formally  abolished  by  a  repeal  of  the 
statutes  in  question.  The  intention,  as  evidenced  by  the 
later  statutes,  was  to  repeal  all.  But  many  of  the 
ancient  statutes  creating  those  restrictions  remained  un- 
repealed until  a  very  recent  date. 

In  order  to  get  an  adequate  idea  of  the  progress  of  the 
English  law  in  this  respect,  it  will  be  necessary  to  go  into 
some  degree  of  detail.  And  in  order  to  get  a  complete 
idea  of  the  character  of  such  legislation,  it  is  important 
to  examine  those  statutes  with  some  thoroughness. 

The  Statute  of  Labourers  is  the  first  one  which  calls  for 
our  attention.  It  will  be  necessary,  in  order  to  present 
satisfactorily  the  quality  of  the  legislation  embraced 
therein,  to  give  it  verbatim.     It  is  as  follows  : 

"  The  Statute  of  Labourers,  made  23  Edw.  Ill,  and  Anno  Dom. 
1349.  (a) 

(a)  3  Pickering's  Statutes,  26.  All  the  English  statutes  here  quoted  are 
from  Pickering's  edition. 


10  ENGLISH   LAW   AS   TO 

"  Edward  by  the  grace  of  God,  &c.  to  the  reverend  father  in 
Christ,  William,  by  the  same  grace  archbishop  of  Canterbury, 
primate  of  all  England,  greeting.  Because  a  great  part  of  the  peo- 
ple, and  especially  of  workmen  and  servants,  late  died  of  the  pesti- 
lence, many  seeing  the  necessity  of  masters,  and  great  scarcity  of 
servants,  will  not  serve  unless  they  may  receive  excessive  wages, 
(2)  and  some  rather  willing  to  beg  in  idleness,  than  by  labour  to 
get  their  living  ;  we,  considering  the  grievous  incommodities,  which 
of  the  lack  especially  of  ploughmen  and  such  labourers  may  here- 
after come,  have  upon  deliberation  and  treaty  with  the  prelates  and 
the  nobles,  and  learned  men  assisting  us,  of  their  mutual  counsel, 
ordained  : 

"CAP.    I. 

"  Every  person  able  in  body  under  the  age  of  sixty  years,  not  hav- 
ing to  live  on,  being  required,  shall  be  bound  to  serve  him  that  doth 
require  him,  or  else  committed  to  the  gaol  until  he  find  surety  to  serve. 

"  That  every  man  and  woman  of  our  realm  of  England,  of  what 
condition  he  be,  free  or  bond,  able  in  body,  and  within  the  age  of 
threescore  years,  not  living  in  merchandize,  nor  exercising  any  craft, 
nor  having  of  his  own  whereof  he  may  live,  nor  proper  land,  about 
whose  tillage  he  may  himself  occupy,  and  not  serving  any  other,  if 
he  in  convenient  service  [his  Estate  considered)  be  required  to  serve,  he 
shall  be  bounden  to  serve  him  which  so  shall  him  require.  And  take 
only  the  wages,  livery,  meed,  or  salary,  which  were  accustomed  to  be 
given  in  the  2>laces  ivhere  he  oweth  to  serve,  the  XX.  year  of  our  reign 
of  England,  or  five  or  six  other  common  years  next  before.  Provided 
always,  That  the  lords  be  preferred  before  other  in  their  bondmen  or 
their  land  tenants,  so  in  their  service  to  be  retained  :  so  that  never- 
theless the  said  loi'ds  shall  retain  no  more  than  be  necessary  for  them. 
And  if  any  such  man  or  woman,  being  so  required  to  serve,  will  not 
the  same  do,  that  proved  by  two  true  men  before  the  sheriff  or  the 
bailiffs  of  our  sovereign  lord  the  King,  or  the  constables  of  the  town 
where  the  same  shall  happen  to  be  done,  he  shall  anon  be  taken  by 
them  or  any  of  them,  and  committed  to  the  next  gaol,  there  to  remain 
under  strait  keeping,  till  he  find  surety  to  serve  in  the  form  aforesaid. 

"CAP.   II. 

*'  If  a  workman  or  servant  depart  from  service  before  the  time  agreed 
upon,  he  shall  be  imprisoned. 


PRIVATE   EMPLOYMENTS.  11 

"  Item,  If  any  reaper,  mower,  or  other  workman  or  servant,  of 
what  estate  or  condition  that  he  be,  retained  in  any  man's  service, 
do  depart  from  the  said  service  ivithout  reasonable  cause  or  licence, 
before  the  term  agreed,  he  shall  have  pain  of  im2)risonment.  And  that 
none  under  the  same  pain  presume  to  receive  or  to  retain  any  such 
in  his  service. 

**CAP.  III. 

"  The  old  toaaes,  and  no  more,  shall  be  given  to  servants. 

* '  Item,  That  no  man  pay,  or  promise  to  pay,  any  servant  any  more 
wages,  liveries,  meed,  or  salary  than  was  wont,  as  afore  is  said.  Nor 
that  any  in  other  manner  shall  demand  or  receive  the  same,  upon 
pain  of  doubling  of  that,  that  so  shall  be  paid,  promised,  required, 
or  received,  to  him  which  thereof  shall  feel  himself  grieved,  pursuing 
for  the  same.  And  if  none  such  will  pursue,  then  the  same  to  be 
applied  to  any  of  the  people  that  will  pursue.  And  such  pursuit 
shall  be  in  the  court  of  the  lord  of  the  place  where  such  case  shall 
happen. 

"CAP.  IV. 

"  If  the  lord  of  a  town  or  manor  do  offend  against  this  statute  in 
any  point,  he  shall  forfeit  the  treble  value. 

*'  Item,  if  the  lords  of  the  towns  or  manors  presume  in  any  point 
to  come  against  this  present  ordinance  either  by  them,  or  by  their 
servants,  then  pursuit  shall  be  made  against  them  in  the  counties, 
wapentakes,  tithings,  or  such  other  courts,  for  the  treble  pain  paid 
or  promised  by  them  or  their  servants  in  the  form  aforesaid.  And 
if  any  before  this  present  ordinance  hath  covenanted  with  any  so  to 
serve  for  more  wages,  he  shall  not  be  bound  by  reason  of  the  same 
covenant,  to  pay  more  than  at  another  time  was  wont  to  be  paid  to 
such  person.     Nor  upon  the  said  pain  shall  presume  any  more  to  pay. 

"CAP.  V. 

' '  If  any  artificer  or  workman  take  m,ore  wages  than  were  wont  to 
be  paid,  he  shall  be  committed  to  the  gaol. 

"  Item,  That  sadiers,  skinners,  white-tawers,  cord-wainers,  taylors, 
smiths,  carpenters,  masons,  tilers,  shipwrights,  carters,  and  all  other 
artificers  and  workmen,  shall  not  take  for  their  labour  and  toorkman- 
ship  above  the  same  that  was  wont  to  be  jmid  to  such  persons  the  said 
twentieth  year,  and  other  common  years  next  before,  as  afore  is  said,  in 


12  ENGLISH   LAW   AS   TO 

the  place  where  they  shall  happen  to  work.  And  if  any  man  take 
more,  he  shall  be  committed  to  the  next  gaol,  in  manner  as  afore  is 
said. 

''CAP.  VI. 

"  Victuals  shall  be  sold  .at  reasonable  prices. 

"  Item,  That  butchers,  fishmongers,  regrators,  hostelers,  brewers, 
bakers,  palters,  and  all  other  sellers  of  all  manner  of  victual,  shall  be 
bound  to  sell  the  same  victual  for  a  reasonable  2^1'ice,  having  respect 
to  the  price  that  such  victual  be  sold  at  in  the  places  adjoining,  so 
that  the  same  sellers  have  moderate  gains,  and  not  excessive,  reason- 
ably to  be  required  according  to  the  distance  of  the  place  from 
whence  the  said  victuals  be  carried.  (2)  And  if  any  sell  such  vic- 
tuals in  any  other  manner,  and  thereof  be  convict  in  the  manner  and 
form  aforesaid,  he  shall  pay  the  double  of  the  same  that  he  so  re- 
ceived, to  the  party  damnified,  or,  in  default  of  him,  to  any  other 
that  will  pursue  in  this  behalf.  (3)  And  the  mayors  and  bailiffs  of 
cities,  boroughs,  merchant-towns,  and  others,  and  of  the  ports  of  the 
sea,  and  other  places,  shall  hav^e  power  to  inquire  of  all  and  singular 
which  shall  in  any  thing  offend  the  same,  and  to  levy  the  said  pain 
to  the  use  of  them  at  whose  suit  such  offenders  shall  be  convict. 
(4)  And  in  case  that  the  same  mayors  and  bailiffs  be  negligent  in 
doing  execution  of  the  premises,  and  thereof  be  convict  before  our 
justices,  by  us  to  be  assigned,  then  the  same  mayors  and  bailiffs  shall 
be  compelled  by  the  same  justices  to  pay  the  treble  of  the  thing  so 
sold  to  the  party  damnified,  or  to  any  other  in  default  of  him  that 
will  pursue  ;  and  nevertheless  towards  us  they  shall  be  grievously 
punished. 

"CAP.  VII. 

"  No  person  shall  give  any  thing  to  a  beggar  that  is  able  to  labour. 

"  Item,  because  that  many  valiant  beggars,  as  long  as  they  may 
live  of  begging,  do  refuse  to  labour,  giving  themselves  to  idleness 
and  vice,  and  sometime  to  theft  and  other  abominations  ;  none 
upon  the  said  pain  of  imprisonment  shall,  under  the  colour  of  pity 
or  alms,  give  any  thing  to  such,  which  may  labour,  or  presume  to 
favour  them  towards  their  desires,  so  that  thereby  they  may  be  com- 
pelled to  labour  for  their  necessary  living.  Wherefore  our  said  sov- 
ereign lord  the  King,  the  xiiii.  day  of  June,  the  xxiii.  year  of  his 
reign,  hath  commanded  to  all  sheriffs  of  England  by  divers  writs, 
that  they  shall  do  openly  to  be  proclaimed  and  holden,  all  and  sin- 


PRIVATE   EMPLOYMENTS.  13 

gular  the  premises  in  the  counties,  boroughs,  merchant-towns,  sea- 
ports, and  other  places  in  their  baiUwicks,  wliere  to  them  shall  seem 
expedient  :  and  that  they  do  1  hereof  due  execution,  as  afore  is  said. 

"  CAP.  YIII. 

"  He  that  taketh  more  wages  than  is  accustomably  given,  shall 
pay  the  surplusage  to  the  town  where  he  dwelleth,  towards  a  pay- 
ment to  the  King  of  a  tenth  and  tifteenth  granted  to  him. 

"  Subsequently  our  sovereign  lord  the  King,  perceiving  by  the 
common  complaint,  that  his  people,  for  such  excessive  stipend,  liv- 
eries, and  prices,  which  to  such  servants,  labourers,  and  workmen 
were  constrainedly  paid,  be  oppressed,  and  that  the  disme  and  quin- 
zime  to  him  attaining  might  not  be  paid,  unless  remedy  were  there- 
fore provided  :  regarding  also  the  coactions  and  manifest  extortions, 
and  that  there  was  no  man,  which  against  such  offenders,  did  pursue 
for  the  said  commodity  so  ordained  to  be  obtained  :  wherefore  it 
was  consonant,  that  that  thing  which  was  ordained  to  .be  applied  to 
singular  uses,  seeing  that  the  same  persons  did  not,  nor  would  not, 
pursue,  should  be  converted  to  a  publick  and  common  proiit,  by  the 
advice  of  his  counsel,  Hath  ordained,  That  all  and  singular  work- 
men, servants  and  artificers,  as  well  men  as  women,  of  whatsoever 
estate  or  condition  they  be,  taking  more  for  their  labours,  services, 
and  workmanship,  than  they  were  wont  to  take  the  said  XX.  year, 
and  other  years  aforesaid,  should  be  assessed  to  the  same  sum, 
which  they  shall  receive  over  and  above,  with  other  sums  as  well  for 
the  time  past,  Avhen  the  stipend,  wages,  liveries,  and  prices  were 
augmented,  as  for  the  time  then  to  come.  And  that  the  said  whole 
sum  received  over  and  above,  should  be  levied  of  every  of  them,  and 
gathered  to  the  King's  use,  in  alleviation  of  every  of  the  towns, 
whereof  the  said  artificers,  servants,  and  labourers  be,  towards  the 
payments  of  the  sums  of  the  disme  and  quinzime  yet  running,  where- 
unto  the  same  towns  or  j^eople  of  the  same  were  assessed.  So  that 
always,  the  same  disme  and  quinzime  ended,  all  the  same  money, 
liveries,  and  prices,  or  the  value  of  the  same  liveries,  which  (as  afore 
is  said)  should  be  over  and  above  received  of  them,  and  every  of 
them,  should  be  levied  and  gathered  by  them,  whom  the  King  will 
thereto  assign,  to  the  King's  use,  in  alleviation,  and  supportation  of 
the  realm  of  England.  And  that  they  which  for  the  same  to  serve, 
or  the  said  sums  so  by  them  over  and  above  received,  and  before 
assessed  to  pay,  and  their  crafts  and  work  to  exercise  do  refuse, 


14:  ENGLISH  LAW  AS  TO 

they  shall  be  incontinently  arrested  by  the  taxers  and  collectors  of 
the  said  disme  and  quinzime,  or  any  of  them,  in  every  of  the  said 
towns  deputed  to  execute  .the  premisses,  or  by  the  bailiffs  of  the 
places,  or  constables  of  the  towns,  when  they  be  thereof  certified,  and 
committed  to  the  gaol,  there  to  remain  till  they  have  found  surety 
to  serve,  and  shall  pay  that  that  they  shall  above  receive,  accord- 
ing to  the  same  ordinances,  or  till  the  King  shall  some  other  thing 
thereof  demand.  And  always  it  is  the  intent  of  the  King  and  of 
his  council,  that  according  to  the  first  ordinance  it  should  be  lawful, 
and  shall  be  lawful  to  every  man,  to  pursue  against  all  exceeding  the 
same,  or  not  obeying  to  the  same,  and  the  thing  recovered  to  be 
applied  to  his  own  use.  And  therefore  our  said  sovereign  lord  the 
King  hath  commanded  all  archbishops,  and  bishops,  that  they  do  to 
be  pubhshed  the  premises  in  all  places  of  their  dioceses,  command- 
ing the  curates  and  other  subdiocesans,  that  they  compel  their  paro- 
chians  to  labour,  according  to  the  necessity  of  the  time,  and  also 
their  stipendiary  priests  of  their  said  dioceses,  which  do  now  exces- 
sively take,  and  will  not,  as  it  is  said,  serve  for  a  competent  salary, 
as  hath  been  accustomed,  upon  pain  of  suspension  and  interdiction. 
And  that  in  no  wise  ye  omit  the  same,  as  ye  love  us  and  the  com- 
monwealth of  our  realm.     Dated  the  day  and  year  aforesaid." 

This  Statute,  it  is  seen,  attempted  not  only  to  regulate 
the  wages  of  labor,  but  the  sale  of  "  all  manner  of  vic- 
tual," and  to  compel  its  sale  at  "  reasonable  prices." 

As  to  labor,  however,  it  went  beyond  a  mere  attempt 
to  fix  prices.  It  also  laid  upon  persons  able  to  labor  the 
legal  obligation  to  work  at  those  prices.  Moreover,  it 
gave  to  would-be  employers  a  corresponding  legal  right 
to  service.  It  thereupon  i)i'oceeded  to  provide  legal 
machinery,  such  as  it  was,  for  enforcing  those  rights  and 
obligations. 

This  was  logical  and  consistent.  Evidently,  statutes 
which  fix  the  rates  of  wages  to  be  paid  by  the  employer 
ought  also  to  provide  proper  legal  process  to  enable  him 
to  procure  employees  at  those  rates.  If  the  employer  is 
not  allowed  to  pay  any  higher  rate  than  that  fixed  by  the 
State,  the  State  is  surely  bound  to  protect  him  by  com- 
pelling the  employee  to  accept  service  at  the  rates  so  fixed. 

The  legislators  of  that  time  duly  accepted  that  obliga- 


PRIVATE   EMPLOYMENTS.  15 

tion.  They  made  the  attempt,  not  only  to  fix  the  prices 
of  labor,  bat  also  to  compel  the  laborer  to  accept  those 
prices.  The  same  feature  will  be  found  to  exist  in  other 
early  English  statutes,  and  in  some  early  American 
statutes. 

This  feature  of  those  early  statutes  will  be  found,  in  my 
opinion,  to  have  a  most  important  bearing  on  the  general 
situation  under  the  later  English  and  American  law. 

Although  this  Statute  of  Labourers  i^urported  to  regu- 
late the  i)rices  of  labor  and  of  merchandise,  it  did  not  fix 
the  rates  of  wages  or  the  prices  of  merchandise  in  specific 
amounts  of  money,  but  merely  enacted  that  the  able- 
bodied  persons  named  in  the  statute  should  "  take  only 
the  wages,  livery,  meed,  or  salary,  which  were  accus- 
tomed to  be  given  in  the  places  where  he  oweth  to  serve 
the  XX.  year  of  our  reign  of  England,  or  five  or  six  other 
common  years  next  before ;"  and  that,  as  to  prices  of 
"victual,"  "all  manner  of  victual"  should  be  sold  at 
"  prices  which  were  reasonable." 

This  left  matters  vague.  Evidently,  too,  other  practi- 
cal difficulties  intervened  to  prevent  the  statute  from  hav- 
ing the  full  degree  of  efficiency  which  had  been  antici- 
pated. So  we  find  very  soon  thereafter  another  Act,  the 
25  Edw.  III.,  Stat.  1  (a.d.  1850),  which  begins  with  a  re- 
cital showing  the  contempt  with  which  the  former  act 
had  been  treated  by  all  classes. 

This  later  statute  is  as  follows  : 

"  A  Statute  of  Labourers,  made  Anno  25  Edw.  III.  Stat.  I.  and 
A.  D.  1350. 

**  Whereas  late  against  the  malice  of  servants,  which  were  idle, 
and  not  willing  to  serve  after  the  pestilence,  without  taking  exces- 
sive wages,  it  was  ordained  by  our  lord  the  King,  and  by  assent  of 
the  prelales,  earls,  barons,  and  other  of  his  council.  That  such  man- 
ner of  servants,  as  well  men  as  women,  should  be  bound  to  serve, 
receiving  salary  and  wages,  accustomed  in  places  where  they  ought 
to  serve  in  the  twentieth  year  of  the  reign  of  the  King  that  now  is, 
or  five  or  six  years  before  ;  and  that  the  same  servants  refusing  to 
serve  in  such  manner  should  be  punished  by  imprisonment  of  their 


16  ENGLISH   LAW   AS   TO 

bodies,  as  in  the  said  statute  is  more  plainly  contained  ;  (2)  where- 
upon commissions  were  made  to  divers  iieojile  in  every  count]/  to  en- 
quire a7id  punish  all  them  which  offend  against  the  same.  (3)  And 
now  forasmuch  as  it  is  given  the  King  to  understand  in  this  i^fesent 
parliament,  hy  the  petition  of  the  commonalty,  that  the  said  servants 
having  no  regard  to  the  said  ordinance,  but  to  their  ease  and  singular 
covetise,  do  withdraio  themselves  to  serve  great  men  and  other,  unless 
they  have  livery  and  wages  to  the  double  or  treble  of  that  they  were 
wont  to  take  the  said  twentieth  year,  and  before,  to  the  great  damage 
of  the  great  men,  and  impoverishing  of  all  the  said  commonalty, 
whereof  the  said  commonalty  prayeth  remedy  ;  (4)  wherefore  in  the 
same  parliament,  by  the  assent  of  the  said  prelates,  earls,  barons, 
and  other  great  men  of  the  same  commonalty  there  assembled,  to 
refrain  the  malice  of  the  said  servants,  be  ordained  and  established 
the  things  underwritten. 

"CAP.    I. 

"  The  year  and  day'' s  wages  of  servants  and  labourers  in  husbandry. 

"  First,  That  carters,  ploughmen,  drivers  of  the  plough,  shep- 
herds, swineherds,  deies,  and  all  other  servants,  shall  take  liveries 
and  wages,  accustomed  the  said  twentieth  year,  or  four  years  before, 
so  that  in  the  country,  where  wheat  was  wont  to  be  given,  they  shall 
take  for  the  bushel  ten  pence,  or  wheat  at  the  will  of  the  giver,  till  it 
be  otherwise  ordained.  And  that  they  be  allowed  to  serve  by  a 
whole  year,  or  by  other  usual  terms,  and  not  by  the  day.  And  that 
none  pay  in  the  time  of  sarcling  or  hay-making  but  a  penny  the  day. 
And  a  mower  of  meadows  for  the  acre  five  jjence,  or  by  the  day  five 
2)ence.  And  reapers  of  corn  in  the  first  week  of  August  ttoo  pence, 
and  the  second  th7-ee  pence,  and  so  till  the  end  of  August,,  and  less 
in  the  country  where  less  was  wont  to  be  given,  without  meat  or 
drink,  or  other  courtesy  to  be  demanded,  given,  or  taken.  And 
that  all  workmen  bring  openly  in  their  hands  to  the  merchant  towns 
their  instruments,  and  there  shall  be  hired  in  a  common  place  and 
not  privy. 

"CAP.  II. 

**  IIow  much  shall  be  given  for  threshing  all  sorts  of  corn  by  the 
quarter.  None  shall  depart  from  the  town  in  summer  ivhere  he  dwelt 
in  tvinter. 

"  Item,  That  none  take  for  the  threshing  of  a  quarter  of  ivheat  or 


PRIVATE   EMPLOYMENTS.  17 

rye  over  ii.d.ob.  and  the  quarter  of  barley,  beans,  pease,  and  oats, 
i.d.ob.  if  so  much  wore  wont  to  be  given,  and  in  the  country,  where 
it  is  used  to  reap  by  certain  sheaves,  and  to  thresh  by  certain 
bushels,  they  shall  take  no  more  nor  in  other  manner  than  was  wont 
the  said  xx.  year  and  before.  And  that  the  same  servants  be  sivorn 
two  times  in  the  year  before  lords,  stewards,  bailiffs,  and  constables 
of  every  town,  to  hold  and  do  these  ordinances.  And  that  none  of 
them  go  out  of  the  town,  zvhere  he  divelleth  in  the  winter,  to  serve  the 
summer,  if  he  may  serve  in  the  same  town,  taking  as  before  is  said. 
Saving  that  the  people  of  the  counties  of  Stafford,  Lancaster,  and 
Derby  and  people  of  Craven,  and  of  the  marches  of  Wales  and  Scot- 
land, and  other  places,  may  come  in  time  of  August,  and  labour  in 
other  counties,  and  safely  return,  as  they  were  wont  to  do  before 
this  time.  And  that  those,  which  refuse  to  make  such  oath,  or  to 
perform  that  that  they  be  sworn  to,  or  have  taken  upon  them,  shall 
be  put  in  the  stocks  by  the  said  lords,  stewards,  bailiffs,  and  con- 
stables of  the  towns  by  three  days  or  more,  or  sent  to  the  next  gaol, 
there  to  remain,  till  they  will  justify  themselves.  And  that  stocks 
be  made  in  every  town  by  such  occasion  betwixt  this  and  the  feast 
of  Pentecost. 

"CAP.  III. 

"  The  wages  of  several  sorts  of  artificers  and  labourers. 

"  Item,  That  carpenters,  masons,  and  tilers,  and  other  workmen 
of  houses,  shall  not  take  by  the  day  for  their  work,  but  in  manner 
as  they  were  wont,  that  is  to  say  ;  A  master  carjicnter,  iii.d.  and  an 
other  ii.d.  A  master  free  mason  iiii.d.  and  other  masons  iii.d.  and 
their  servants  i.d.ob.  tylers  iii.d.  and  their  knaves  i.d.ob.  and  other 
coverers  of  fern  and  straw  iii.d.  and  their  knaves  i.d.ob.  j^l^^i^^erers 
and  other  workers  of  mudivalls,  and  their  knaves,  by  the  same  manner, 
without  meat  or  drink,  s.  from  Easter  to  Saint  Michael.  And  from 
that  time  less,  according  to  the  rate  and  discretion  of  the  justices, 
which  should  be  thereto  assigned.  And  that  they  that  make  car- 
riage by  land  or  by  water,  shall  take  no  more  for  such  carriage  to  be 
made,  than  they  were  wont  the   said  xx.  year,  and  iiii.  years  before. 

"CAP.  IV. 

"  Shoes,  (fee,  shall  be  sold  as  in  the  20th  year  of  King  Edward 
the  3d.  Artificers  sworn  to  use  their  crafts  as  they  did  in  the  20th 
year  of  the  same  King. 


18  ENGLISH   LAW   AS   TO 

"  Item,  That  cordwainers  and  shoemakers,  shall  not  sell  boots  nor 
shoes,  nor  none  other  thing  touching  their  mystery,  in  any  other 
manner  than  they  were  wont  the  said  xx.  year,  and  that  goldsmiths, 
sadlers,  horsesmiths,  spurriers,  tanners,  curriers,  tawers  of  leather, 
taylors,  and  other  workmen,  artificers  and  labourers,  and  all  other 
servants  here  not  specified,  shall  be  sworn  before  the  justices,  to  do  and 
use  their  crafts  and  offices  in  the  manner  as  they  ivere  tvont  to  do  the 
said  XX.  year,  and  in  the  time  before,  without  refusing  the  same  because 
of  this  ordinance.  And  if  any  of  the  said  servants,  labourers,  work- 
men, or  artificers,  after  such  oath  made,  come  against  this  ordinance, 
he  shall  be  punished  by  fine,  and  ransom,  and  imprisonment  after 
the  discretion  of  the  justices. 

"CAP.  V. 

"  The  several  punishments  of  persons  offending  against  this 
statute. 

"  Item,  That  the  said  stewards,  bailiffs,  and  constables  of  the  said 
towns,  be  sworn  before  the  same  justices,  to  inquire  diligently  by 
all  the  good  ways  they  may,  of  all  them  that  come  against  this  ordi- 
nance, and  to  certify  the  same  justices  of  their  names  at  all  times, 
when  they  shall  come  into  the  country  to  make  their  sessions,  so 
that  the  same  justices  in  certification  of  the  same  stewards,  bailiffs, 
and  constables,  of  the  names  of  the  rebels,  shall  do  them  to  be  at- 
tached by  their  body,  to  be  before  the  said  justices,  to  answer  of 
such  contempts,  so  that  they  make  fine  and  ransom  to  the  King,  in 
case  they  be  attainted.  And  moreover  to  be  commanded  to  prison, 
there  to  remain,  till  they  have  found  surety,  to  serve,  and  take  and 
do  their  work,  and  to  sell  things  vendable  in  the  manner  aforesaid. 
And  in  case  that  any  of  them  come  against  his  oath,  and  be  thereof 
attainted,  he  shall  have  imprisonment  of  forty  days.  And  if  he  be 
another  time  convict,  he  shall  have  imprisonment  of  a  quarter  of  a 
year,  so  that  at  every  lime  that  he  offendeth  and  is  convict,  he  shall 
have  double  pain.  And  that  the  same  justices,  at  every  time  they 
come  into  the  country,  shall  enquire  of  the  said  stewards,  bailiffs, 
and  constables,  if  they  have  made  a  good  and  lawful  certificate,  or 
any  conceal  for  gift,  procurement,  or  affinity,  and  punish  them  by 
fine  and  ransom,  if  they  be  found  guilty.  And  that  the  same  jus- 
tices have  power  to  enquire  and  make  due  punishment  of  the  said 
ministers,  labourers,  workmen  and  other  servants.  And  also  of 
hostlers,  herbergers,  and  of  those  that  sell  victual  by  retail,  or  other 


PRIVATE   EMPLOYMENTS.  19 

things  here  not  specified,  as  well  at  the  suit  of  the  party,  as  by  pre- 
sentment, and  to  hear  and  determine,  and  put  the  things  in  execu- 
tion by  the  exigend  after  the  first  capias,  if  need  be,  and  to  depute 
other  under  them,  as  many  and  such  as  they  shall  see  best  for  the 
keeping  of  the  same  ordinance.  And  that  they,  which  will  sue 
/  against  such  servants,  workmen,  labourers,  and  artificers,  for  excess 
taken  of  them,  and  they  be  1  hereof  attainted  at  their  suit,  they  shall 
have  again  such  excess.  And  in  case  that  none  will  sue,  to  have 
again  such  excess,  then  it  shall  be  levied  of  the  said  servants,  labour- 
ers, workmen  and  artificers,  and  delivered  to  the  collectors  of  the 
quinzime,  in  alleviation  of  the  towns  where  such  excesses  were 
laken. 

"CAP.  YI. 

"  Sheriffs,  constables,  bailiffs,  gaolers,  nor  other  officers,  shall 
exact  any  thing  of  the  same  servants.  The  forfeitures  of  servants 
shall  be  employed  to  the  aid  of  dismes  and  quinzimes  granted  to  the 
King  by  the  commons. 

"  Item,  That  no  sheriffs,  constables,  bailiffs,  and  gaolers,  the 
clerks  of  the  justices,  or  of  the  sheriffs,  nor  other  ministers  what- 
soever they  be,  take  any  thing  for  the  cause  of  their  office  of  the 
same  servants,  for  fees,  suit  of  prison,  nor  in  other  manner,  and  if 
they  have  any  thing  taken  in  such  manner,  they  shall  deliver  the 
same  to  the  collectors  of  dismes  and  quinzimes,  in  aid  of  the  com- 
mons, for  the  time  that  the  dismes  and  quinzimes  doth  run,  as  well  for 
the  time  past,  as  for  the  time  to  come.  And  that  the  said  justices 
enquire  in  their  sessions,  if  the  said  ministers  have  any  thing  re- 
ceived of  the  same  servants,  and  that  that  they  shall  find  by  such 
inquests,  that  the  said  ministers  have  received  the  same  justices 
shall  levy  of  every  of  the  said  ministers,  and  deliver  to  the  said  col- 
lectors, together  with  the  excess  and  fines  and  ransoms  made,  and 
also  the  amerciaments  of  all  them  which  shall  be  amerced  before  the 
said  justices,  in  alleviation  of  the  said  towns,  as  afore  is  said.  And 
in  case  the  excess  found  in  one  town  doth  exceed  the  quantity  of 
the  quinzime  of  the  same  town,  the  remnant  of  such  excess  shall  be 
levied  and  paid  by  the  said  collectors  to  the  next  poor  towns,  in  aid 
of  their  quinzime,  by  advice  of  the  said  justices.  And  that  the  fines 
and  ransoms,  excesses  and  amerciaments  of  the  said  servants, 
labourers  and  artificers,  for  the  time  to  come  running  of  the  said 
quinzime,  be  delivered  to  the  said  collectors,  in  the  form  aforesaid, 


20  ENGLISH   LAW   AS   TO 

by  indentures  to  be  made  betwixt  them  and  the  said  justices,  so  that 
the  same  collectors  may  be  charged  upon  their  accompt  by  the  same 
indentures,  in  case  tliat  the  said  fines,  ransoms,  amerciaments,  and 
excesses  be  not  paid  in  aid  of  the  said  quinzime.  And  sessing  the 
said  quinzime,  it  shall  be  levied  to  the  King's  use,  and  answered  to 
him  by  the  sheriffs  of  the  counties. 

"CAP.  VIT. 

"  The  justices  shall  hold  their  sessions  four  times  a  year,  and  at 
all  times  needful.  Servants  which  flee  from  one  country  to  another 
shall  be  committed  to  prison. 

"  Item,  That  the  said  justices  make  their  sessions  in  all  the  coun- 
ties of  England  at  the  least  four  times  a  year,  that  is  to  say,  at  the 
feast  of  the  Annunciation  of  our  Lady  Saint  Margaret,  Saint  Michael, 
and  Saint  Nicholas.  And  also  at  all  times  that  shall  need,  accord- 
ing to  the  discretion  of  the  said  justices.  And  that  those  that  speak 
in  the  presence  of  the  said  justices,  or  other  things  do  in  their  ab- 
sence or  presence,  in  encouraging  or  maintenance  of  the  said  ser- 
vants, labourers  or  artificers  against  this  ordinance,  shall  be  griev- 
ously  punished  by  the  discretion  of  the  same  justices.  And  if  any 
of  the  said  servants,  labourers,  or  artificers  do  flee  from,  one  countu 
to  another,  because  of  this  ordinance,  that  the  sheriffs  of  the  county 
where  such  fugitive  persons  shall  be  found,  shall  do  them  to  be  taken, 
at  the  commandment  of  the  justices  of  the  counties  from  whence 
they  shall  flee,  and  bring  them  to  the  chief  gaol  of  the  same  county, 
there  to  abide  till  the  next  sessions  of  the  same  justices.  And  that 
the  sheriffs  return  the  same  commandments  before  the  same  justices 
at  Iheir  next  sessions.  And  that  this  ordinance  be  holden  and  kept, 
as  well  in  the  city  of  London,  as  in  other  cities  and  boroughs,  and 
other  places  throughout  the  land,  as  well  within  franchises  as  with- 
out." 

Of  like  nature  were  the  following  series  of  enactments, 
intended  to  lix  the  prices  of  certain  classes  of  mer- 
chandise, to  prevent  an  increase  in  the  prices  thereof  by 
wholesale  dealers,  termed  "  ingrossers, "  to  prevent  deal- 
ing by  any  single  merchant  in  merchandise  of  more 
than  one  class,  to  prevent  artisans  from  following  more 
than  one  craft,   to  regulate  the  quality  of  goldsmiths' 


PRIVATE   EMPLOYMENTS.  21 

ware,  and  to  regulate  the  diet  and  clothing,  of  servants, 
and  of  subjects  of  all  classes. 

Act  37  Edw.  hi.,  Cap.  III.,  V.,  VI.,  VII.,  VIII.,  XV. 


"  CAP.  III. 

"  The  several  prices  of  a  hen,  capon,  pullet,  and  goose. 

"  Item,  for  the  great  dearth  that  is  in  many  places  of  the  realm 
of  poultry  ;  it  is  ordained.  That  the  price  of  a  young  capon  shall 
not  pass  3d.  and  of  an  old  4d.  of  an  hen  2d.  of  a  pullet  Id.  of  a 
goose  4c?.  and  in  places  where  the  prices  of  such  victuals  be  less, 
they  shall  hold,  without  being  enhanced  by  this  ordinance.  And 
that  in  the  towns  and  markets  of  up-land  they  shall  be  sold  at  a  less 
price,  according  as  may  be  agreed  between  the  seller  and  the  buyer. 
And  justices  shall  be  thereupon  assigned  by  commission  to  put  the 
thing  duely  in  execution. 

"CAP.  V. 

"  Merchants  sh<tH  not  biffross  merchandises  to  inhance  the  prices 
of  them,  nor  use  but  one  sort  of  merchandise. 

"  Item,  for  the  p-eat  mischiefs  which  have  hapjyened,  as  well  to 
the  King,  as  to  the  great  men  and  commons,  of  that  that  the  mer- 
chants, called  grocers,  do  ingross  all  manner  of  merchandise  vendi- 
ble :  and  suddenly  do  enhance  the  price  of  such  merchandise  within 
the  realm,  putting  to  sale  by  covin  and  ordinance  made  betwixt 
them,  called  the  fraternity  and  gild  of  merchants,  the  merchandises, 
which  be  most  dear,  and  keep  in  store  the  other,  till  the  time  that 
dearth  or  scarcity  be  of  the  same  :  hath  ordained,  That  no  English 
merchant  shall  use  no  ware  nor  merchandise,  by  him  nor  by  other, 
nor  by  no  manner  of  covin,  one  only  one,  which  he  shall  choose  be- 
twixt this  and  the  feast  of  Candlemas  next  coming.  And  such  as 
have  other  wares  or  merchandises  in  their  hands,  than  those  that 
they  have  chosen,  may  set  them  to  sale  before  the  feast  of  the 
Nativity  of  Saint  John  next  ensuing.  And  if  any  do  to  the  contrary 
of  this  ordinance  in  any  point,  and  be  thereof  attainted,  in  the 
manner  as  hereafter  followeth,  he  shall  forfeit  against  the  King  the 
merchandise,  which  he  hath  so  used  against  this  ordinance  :  and 
moreover,  shall  make  a  fine  to  the  King,  according  to  the  quantity 
of  the  trespass.     And  how  this  ordinance  shall  be  put  in  execution, 


22  ENGLISH   LAW   AS   TO 

it  is  ordained,  That  good  people  and  lawful  of  every  merchandise 
shall  be  cliosen  and  sworn,  to  survey  that  this  ordinance  be  hoi  den 
and  executed,  that  is  to  say,  two  merchants  in  every  merchandise  in 
every  town  and  burgh,  and  two  merchants  of  every  county,  and  re- 
dress the  defaults,  and  of  that  that  they  may  not  redress,  they  shall 
certify  the  chancellor,  and  the  King's  council.  And  commissions 
shall  be  made  to  certain  people,  to  whom  and  when  it  shall  please 
the  King  to  assign,  to  enquire  in  cities,  burghs,  and  counties,  where 
need  shall  be,  as  well  of  trespasses  in  this  behalf,  as  of  surveyors, 
in  case  that  they  be  negligent,  or  of  covin  with  the  trespassers,  by 
the  oath  of  six  men  sworn  :  and  moreover,  to  make  process  for  to 
hear  and  determine  daily,  and  to  punish  the  trespassers  and  survey- 
ors, that  is  to  say,  the  trespassers  according  as  is  above  ordained, 
and  the  surveyors  according  to  the  discretion  of  the  justices,  and 
that  by  the  jury  of  xii.  in  case  they  will  put  themselves  upon  the 
country  of  their  accusement.  And  whosoever  will  sue  for  the 
King  in  such  case,  shall  be  thereto  received,  and  shall  have  the 
fourth  peny  of  the  forfeiture  of  him  that  so  shall  be  attainted  at 
his  suit. 

**CAP.  VI. 

"  Handicraftsmen  shall  use  but  one  mystery,  but  workwomen  may 
work  as  they  did. 

"  Item,  it  is  ordained.  That  artificers,  handicraft  people,  hold 
them  every  one  to  one  mystery,  which  he  will  choose  betwixt  this 
and  the  said  feast  of  Candlemas.  And  two  of  every  craft  shall  be 
chosen  to  survey,  that  none  use  other  craft  than  the  same  which  he 
hath  chosen,  and  that  justices  be  assigned  to  enquire  by  process,  to 
hear  and  determine  in  this  article,  as  is  ordained  in  the  article 
before  said,  saving  that  the  trespassers  in  this  article  shall  be  pun- 
ished by  imprisonment  of  half  a  year,  and  moreover  to  make  fine 
and  ransom,  according  to  the  quantity  of  the  trespass.  And  the 
surveyors  by  the  discretion  of  the  justices,  as  before.  But  the 
intent  of  the  King  and  of  his  council  is,  that  women,  that  is  to  say, 
brewers,  bakers,  carders,  and  spinners,  and  workers  as  well  of  wool, 
as  of  linen  cloth  and  of  silk,  brawdefters,  and  breakers  of  wool,  and 
all  other  that  do  use  and  work  all  handy  works,  may  freely  use  and 
work  as  they  have  done  before  this  time,  without  any  impeachment, 
or  being  restrained  by  this  ordinance. 


PRIVATE   EMPLOYMENTS.  23 

"CAP.    VII. 

"  Goldsmiths  work  shall  be  of  good  sterling,  and  marked  with  his 
own  mark.     None  shall  make  white  vessel  and  also  gild. 

"  Item,  it  is  ordained,  That  goldsmiths,  as  well  in  London  as 
elsewhere  within  the  realm,  shall  make  all  manner  of  vessel  and 
other  work  of  silver  well  and  lawfully  of  the  allay  of  good  sterling, 
(2)  And  every  master  goldsmith  shall  have  a  mark  by  himself,  and 
the  same  mark  shall  be  known  by  them  which  shall  be  assigned  by 
the  King  to  survey  their  work  and  allay.  (3)  And  that  the  said 
goldsmiths  set  not  their  mark  upon  their  works  till  the  said  surveyors 
have  made  their  essay,  as  shall  be  ordained  by  the  King  and  his 
council  ;  and  after  the  essay  made,  the  surveyors  shall  set  the  King's 
mark,  and  after  the  goldsmith  his  mark,  for  which  he  will  answer. 
(4)  And  that  no  goldsmith  take  for  vessel  white  and  full  for  the 
weight  of  a  pound,  that  is  to  say,  of  the  price  of  two  marks  of  Paris 
weight,  but  eighteen  pence,  as  they  do  at  Paris.  (5)  And  that  no 
goldsmith  making  white  vessel  shall  meddle  with  gilding,  nor  they 
that  do  gild  shall  meddle  to  make  white  vessel.  (6)  And  they 
which  shall  be  so  assigned  in  every  town,  shall  make  their  searches 
as  oftentimes  shall  be  ordained.  (7)  And  for  that  which  shall  be  in 
the  goldsmith's  default,  they  shall  incur  the  pain  of  forfeiture  to  the 
King  the  value  of  the  metal  which  shall  be  found  in  default. 

"CAP.  VIII. 

"  The  diet  and  apparel  of  servants. 

"  Item,  for  the  outragious  and  excessive  apparel  of  divers  people 
against  their  estate  and  degree,  to  the  great  destruction  and  impov- 
erishment of  all  the  land  :  it  is  ordained.  That  grooms,  as  well  ser- 
vants of  lords,  as  they  of  mysteries  and  artificers,  shall  be  served  to 
eat  and  drink  once  a  day  of  flesh  or  of  fish,  and  the  remnant  of 
other  victuals,  as  of  milk,  butter,  and  cheese,  and  other  such  vic- 
tuals, according  to  their  estate.  And  that  they  have  cloths  for  their 
vesture,  or  hosing,  whereof  the  whole  cloth  shall  not  exceed  two 
marks,  and  that  they  wear  no  cloth  of  higher  price,  of  their  buying, 
nor  otherwise,  nor  nothing  of  gold  nor  of  silver  embroidered,  aimeled, 
nor  of  silk,  nor  nothing  pertaining  to  the  said  things.  And  their 
wives,  daughters,  and  children  of  the  same  condition  in  their  clothing 
and  apparel,  and  they  shall  luear  no  veils  i^assing  xii.d.  a  veil." 

Subsequent  chapters  in  the  same  statute  regulated  the 


24  ENGLISH  LAW  AS  TO 

apparel  of  liandicraftsmen  and  yeomen,  of  "  gentlemen 
under  the  estate  of  knights,"  of  "  esquires  of  two  hun- 
dred mark-land,"  of  "  merchants,  citizens,  burgesses,  and 
handicraftsmen,"  of  "  knights  which  have  lands  within 
the  yearly  value  of  two  hundred  marks  and  of  knights 
and  ladies  which  have  four  hundred  mark-land,"  of  "  sev- 
eral sorts  of  clerks,"  of  "  ploughmen  and  others  of  mean 
estate." 

Another  chapter  regulating  the  making  of  cloths 
reads  as  follows  : 

"  CAP.  XV. 

*'  Clothiers  shall  make  cloths  sufficient  of  the  foresaid  prices,  so 
that  this  statute  for  default  of  such  cloths  be  in  no  wise  infringed. 

"  Item,  to  the  intent  that  this  ordinance,  for  the  taking  and  wear- 
ing of  cloths  be  maintained  and  kept  in  all  points  witliout  blemish  : 
it  is  ordained,  that  all  the  makers  of  cloths  within  the  realm,  as  well 
men  as  women,  shall  confirm  them  to  make  their  cloths  according  to 
the  price  limited  by  this  ordinance.  And  that  all  the  drapers  shall 
buy  and  purvey  their  sorts  according  to  the  same  price.  So  that  so 
great  plenty  of  such  cloths  be  made  and  set  to  sale  in  every  city,  bor- 
ough, and  merchant,  town,  and  elsewhere  within  the  realm,  that  for 
default  of  such  cloths  the  said  ordinance  be  in  no  point  broken. 
And  to  that  shall  the  said  clothmakers  and  drapers  be  constrained  by 
any  manner  way  that  best  shall  seem  to  the  King  and  his  council. 
And  this  ordinance  of  new  apparel  shall  begin  at  candlemas  next 
coming." 

In  time  these  statutes,  with  others  of  like  character, 
were  found  to  be  of  no  effect.  The  Statute  5  Elizabeth, 
c.  4,  A.D.  1562,  entitled  "  An  Act  containing  divers  orders 
for  artificers,  labourers,  servants  of  husbandry  and  ap- 
prentices," was  therefore  passed.  It  repealed  many  of 
the  former  acts.     It  began  with  the  following  recital : 

"CAP.  IV. 

"  An  act  containing  divers  orders  for  artificers,  labourers,  servants 
of  husbandry  and  apprentices. 

"  xYlthough  there  remain  and  stand  in  force  presently  a  great 


PRIVATE   EMPLOYMENTS.  25 

number  of  acts  and  statutes  concerning  the  retaining,  departing,  wages 
and  orders  of  apprentices,  servants  and  labourers,  as  well  in  hus- 
bandry as  in  divers  other  arts,  mysteries  and  occupations  ;  (2)  yet 
partly  for  the  imperfection  and  contrariety  that  is  found,  and  doth 
appear  in  sundry  of  said  laws,  and  for  the  variety  and  number  of 
them,  (3)  and  chiefly  for  that  the  wages  and  allowances  limited  and 
rated  in  many  of  the  said  statutes,  are  in  divers  places  too  small  and 
not  answerable  to  this  time,  respecting  the  advancement  of  prices  of  all 
things  belonging  to  the  said  servants  and  labourers  ;  (4)  the  said 
laws  cannot  conveniently,  ^vithout  the  great  grief  and  burden  of  the 
poor  labourer  and  hired  men,  be  put  in  good  and  due  execution  ;  (5) 
and  as  the  said  several  acts  and  statutes  were,  at  the  time  of  the 
making  of  them,  thought  to  be  very  good  and  beneficial  for  the  com- 
monwealth of  this  realm  (as  divers  of  them  are),  so  if  the  substance 
of  as  many  of  the  said  laws  as  are  meet  to  be  continued,  shall  be 
digested  and  reduced  into  one  sole  law  and  statute,  and  in  the  same 
an  uniform  order  prescribed  and  limited  concerning  the  wages  and 
other  orders  for  apprentices,  servants  and  labourers,  there  is  good 
hope  that  it  will  come  to  pass,  that  the  same  law  (being  duly  exe- 
cuted) should  banish  idleness,  advance  husbandry,  and  yield  unto  the 
hired  person,  both  in  the  time  of  scarcity,  and  in  the  time  of  plenty, 
a  convenient  proportion  of  wages. ' ' 

The  Act  then  proceeded  to  repeal,  among  others,  all 
such  statutes  "  as  touch  or  concern  the  hiring,  keeping, 
departing,  working,  wages,  or  order  of  servants,  work- 
men, artificers,  apprentices  and  labourers,  or  any  of 
them." 

The  Act  then  proceeded  to  impose  manifold  restrictions 
on  the  freedom  of  contract  between  employers  and  em- 
ployees, and  to  establish  elaborate  machinery  for  carry- 
ing out  its  jDrovisions.  It  provided,  among  other  things, 
that  in  a  large  number  of  handicrafts  no  person  should  hire 
another  "  to  work  for  any  less  time  or  term  than  for  one 
whole  3^ear  ;"  that  every  person  having  certain  sx)ecified 
qualifications  "  shall  during  the  time  that  he  or  they 
shall  be  so  unmarried,  or  under  the  said  age  of  thirty 
years,  upon  request  made  by  any  person  using  the  art  or 
mystery  wherein  the  said  person  so  required  hath  been 
exercised  (as  is  aforesaid)  he  retained;  and  shall  not 


26  ENGLISH   LAW   AS   TO 

refuse  to  serve  according  to  the  tenor  of  this  statute, 
upon  the  pain  and  penalty  hereafter  mentioned."  It  pro- 
vided, that  no  x^erson  should  put  away  his  servant,  nor 
should  any  servant  depart  from  his  master,  before  the 
end  of  his  term,  "  unless  it  be  for  some  reasonable  and 
sufficient  cause  or  matter  to  be  allowed  before  two  justices 
of  the  peace"  or  other  specified  officials.  It  provided, 
also,  "  that  none  of  the  said  retained  persons  in  hus- 
bandry, or  in  any  of  the  arts  or  sciences  above  remem- 
bered after  the  time  of  his  retainer  expired,  shall  depart 
forth  of  one  city,  town  or  parisli  to  another  ;  (2)  nor  out 
of  the  lath,  rape,  waj^entake  or  hundred  ;  .  .  •  unless 
he  have  a  testimonial  under  the  seal  of  the  said  city 
or  town  corporate,"  or  of  certain  specified  officials  in 
form  prescribed  by  the  statute.  It  contained  also  min- 
ute provisions  as  to  the  hours  of  labor,  and  the  times 
to  be  allowed  for  breakfast,  dinner,  drinking,  and  for 
sleep. 

It  then  abandoned  the  attempt  to  fix  wages  or  prices  at 
definite  rates  specified  in  the  Act  itself.  But  it  provided, 
"  That  the  justices  of  the  peace  of  every  shire  .  .  .  shall 
before  the  tenth  day  of  June  next  coming,  and  afterward 
shall  yearly  .  .  .  assemble  themselves  together  (2)  and 
they  (so  assembled)  calling  unto  them  such  discreet  and 
grave  persons  of  the  said  country  or  of  the  said  city  or 
town  corporate,  as  they  shall  think  meet,  and  conferring 
together,  respecting  the  plenty  or  scarcity  of  the  time 
and  other  circumstances  necessarily  to  be  considered, 
shall  have  authority  by  virtue  thereof,  within  the  limits 
and  precincts  of  their  several  commissions,  to  limits  rate 
and  appoint  the  wages''''  of  artificers,  husbandmen,  labor- 
ers, servants,  and  workmen.  The  statute  further  pro- 
vided for  the  printing  and  proclamation  of  the  rates  so 
established.  It  also  contained  provisions  for  compelling 
"  such  artificers  and  persons  as  be  meet  to  labor"  to  work 
at  mowing,  reaping  and  other  farm  labor  "  in  the  time  of 
hay  or  corn  harvest."  Penalties  were  provided  for  viola- 
tions of  the  provisions  of  the  act. 


PRIVATE   EMPLOYMENTS.  27 

The  sections  of  this  Act  which  have  importance  to  this 
discussion  are  as  follows  : 

"  II.  Be  it  therefore  enacted  by  tlie  authority  of  this  present 
parliament,  That  as  much  of  all  the  cstatutes  heretofore  made,  and 
every  branch  of  them,  as  touch  or  concern  the  hiring,  keeping,  de- 
parting, working,  wages,  or  order  of  servants,  workmen,  artificers, 
apprentices  and  labourers,  or  any  of  them,  and  the  penalties  and 
forfeitures  concerning  the  same,  shall  be  from  and  after  the  last  day 
of  September  next  ensuing,  repealed  and  utterly  void  and  of  none 
effect  ;  (2)  and  that  all  the  said  statutes,  and  every  branch  thereof, 
or  any  matter  contained  in  them,  and  not  repealed  by  this  statute, 
shall  remain  and  be  in  full  force  and  effect  ;  any  thing  in  this  statute 
to  the  contrary  notwithstanding, 

"  III.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
no  manner  of  person  or  persons,  after  the  aforesaid  last  day  of  Sep- 
tember now  next  ensuing,  shall  retain,  hire  or  take  into  service,  or 
cause  to  be  retained,  hired  or  taken  into  service,  nor  any  person  shall 
be  retained,  hired  or  taken  into  service,  by  any  means  or  colour,  to 
work  for  any  less  time  or  term  than  for  one  whole  year,  in  any  of 
the  sciences,  crafts,  mysteries  or  arts  of  clothiers,  woolen  cloth 
weavers,  tuckers,  fullers,  clothworkers,  sheremen,  dyers,  hosiers, 
taylors,  shoemakers,  tanners,  pewterers,  bakers,  brewers,  glovers, 
cutlers,  smiths,  farriers,  curriers,  sadlers,  spurriers,  turners,  cap- 
pers, hatmakers  or  feltmakers,  bowyers,  fietchers,  arrowhead-makers, 
butchers,  cooks  or  millers. 

"  IV.  And  be  it  further  enacted,  That  every  person  being  unmar- 
ried ;  (2)  and  every  other  person  being  under  the  age  of  thirty 
years,  that  after  the  feast  of  Easter  next  shall  marry  ;  (3)  and  hav- 
ing been  brought  up  in  any  of  the  said  arts,  crafts  or  sciences  ; 
(4)  or  that  hath  used  or  exercised  any  of  them  by  the  space  of  three 
years  or  more  ;  (5)  and  not  having  lands,  tenements,  rents  or  here- 
ditaments, copyhold  or  freehold,  of  an  estate  of  inheritance,  or  for 
term  of  any  life  or  lives,  of  the  clear  yearly  value  of  forty  shillings  ; 

(6)  nor  been  worth  of  his  own  goods  the  clear  value  of  ten  pounds  ; 

(7)  and  so  allowed  by  two  justices  of  the  peace  of  the  county  where 
he  hath  most  commonly  inhabited  by  the  space  of  one  whole  year, 
and  under  their  hands  and  seals  ;  (8)  or  by  the  mayor  or  other  head 
officer  of  the  city,  borough  or  town  corporate  where  such  person 
hath  most  commonly  dwelt  by  the  space  of  one  whole  year,  and  two 


28  ENGLISH   LAW   AS   TO 

aldermen,  or  two  other  discreet  burgesses  of  the  same  city,  borough 
or  town  corporate,  if  there  be  no  aldermen,  under  their  hands  and 
seals  ;  (9)  nor  being  retained  with  any  person  in  husbandry,  or  in 
any  of  the  aforesaid  arts  and  sciences,  according  to  this  statute  ; 
(10)  nor  lawfully  retained  in  any  other  art  or  science  ;  (11)  nor 
being  lawfully  retained  in  household,  or  in  any  office,  with  any 
nobleman,  gentleman  or  others,  according  to  the  laws  of  this  realm  ; 
(12)  nor  having  a  convenient  farm,  or  other  holding  in  tillage,  where- 
upon he  may  employ  his  labour  ;  (13)  shall,  during  the  time  that 
he  or  they  shall  be  so  unmarried,  or  under  the  said  age  of  tliirty 
years,  upon  request  made  by  any  person  using  the  art  or  myi^tery 
wherein  the  said  person  so  required  hath  been  exercised  (as  is  afore- 
said) be  retained  ;  (14)  and  shall  not  refuse  to  serve  according  to 
the  tenor  of  this  statute,  upon  the  pain  and  penalty  hereafter  men- 
tioned. 

"  V.  And  be  it  further  enacted.  That  no  person  which  shall  retain 
any  servant  shall  put  away  his  or  her  said  servant  ;  (2)  and  that  no 
person  retained  according  to  this  statute,  shall  depart  from  his  master, 
mistress  or  dame,  before  the  end  of  his  or  her  term  ;  (3)  upon  the 
pain  hereafter  mentioned  ;  (4)  unless  it  be  for  some  reasonable  and 
sufficient  cause  or  matter  to  be  allowed  before  two  justices  of  peace, 
or  one  at  the  least,  within  the  said  county,  or  before  the  mayor  or 
other  chief  officer  of  the  city,  borough  or  town  corporate  wherein  the 
said  master,  mistress  or  dame  inhabiteth,  to  whom  any  of  the  par- 
ties grieved  shall  complain  ;  (5)  which  said  justices  or  justice,  mayor 
or  chief  officer,  shall  have  and  take  upon  them  or  him  the  hearing 
and  ordering  of  the  matter  betwixt  the  said  master  or  mistress,  or 
dame  and  servant,  according  to  the  equity  of  the  cause. 

"  VI.  And  that  no  such  master,  mistress  or  dame,  shall  put  away 
any  such  servant  at  the  end  of  his  term,  or  that  any  such  servant 
shall  depart  from  his  said  master,  mistress  or  dame  at  the  end  of  his 
term,  without  one  quarter's  warning  given  before  the  end  of  the 
said  term,  either  by  the  said  master,  mistress  or  dame,  or  servant, 
the  one  to  the  other,  upon  the  pain  hereafter  ensuing. 

"  VII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
every  person  between  the  age  of  twelve  years  and  the  age  of  sixty 
years,  not  being  lawfully  retained,  nor  apprentice  with  any  fisher- 
man or  mariner  haunting  the  seas  ;  (2)  nor  being  in  service  with 
any  kidder  or  carrier  of  any  corn,  grain  or  meal,  for  provision  of 
the  city  of  London  ;  (3)  nor  with  any  husbandman  in  husbandry  ; 


PRIVATE   EMPLOYMENTS.  29 

(4)  nor  in  any  city,  town  corporate  or  market-town,  in  any  of  the 
arts  or  sciences  limited  or  appointed  by  tliis  estatute  to  have  or  take 
apprentices  ;  (5)  nor  being  retained  by  the  year,  or  half  the  year  at 
the  least,  for  the  digging,  seeking,  finding,  getting,  melting,  lining, 
working,  trying,  making  of  any  silver,  tin,  lead,  iron,  copper,  stone, 
sea-coal,  stone-coal,  moor-coal  or  cherk-coal  ;  (G)  nor  being  occu- 
pied in  or  about  the  making  of  any  glass  ;  (7)  nor  being  a  gentle- 
man born,  nor  being  a  student  or  scholar  in  any  of  the  universities, 
or  in  any  school  ;  (8)  nor  having  lands,  tenements,  rents  or  heredita- 
ments, for  term  of  life,  or  of  one  estate  of  inheritance,  of  the  clear 
yearly  value  of  forty  shillings  ;  (9)  nor  being  worth  in  goods  and 
chattels  to  the  value  of  ten  pounds  ;  (10)  nor  having  a  father  or 
mother  then  living,  or  other  ancestor  whose  heir  apparent  he  is, 
then  having  lands,  tenements  or  hereditaments,  of  tlie  yearly  value 
of  ten  pound  or  above,  or  goods  or  chattels  of  the  value  of  forty 
pound  ;  (11)  nor  being  a  necessary  or  convenient  officer  or  servant 
lawfully  retained,  as  is  aforesaid  ;  (12)  nor  having  a  convenient 
farm  or  holding,  whereupon  he  may  or  shall  imploy  his  labour  ; 
(13)  nor  being  otherwise  lawfully  retained,  according  to  the  true 
meaning  of  this  estatute  ;  (14)  shall  after  the  aforesaid  last  day  of 
September,  now  next  ensuing,  by  virtue  of  this  estatute,  be  compelled 
to  be  retained  to  serve  in  husbandry  by  the  year,  with  any  person  that 
keepeth  husbandry,  and  will  require  any  such  person  so  to  serve, 
within  the  same  shire  where  he  shall  be  so  required. 

"  XII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
all  artificers  and  labourers,  being  hired  for  wages  by  the  day  or 
week,  shall  betwixt  the  midst  of  the  months  of  March  and  September 
be  and  continue  at  their  work  at  or  before  five  of  the  clock  in  the 
morning,  and  continue  at  work  and  not  depart  until  betwixt  seven 
and  eight  of  the  clock  at  night  (except  it  be  in  the  time  of  breakfast, 
dinner  or  drinking,  the  which  times  at  the  most  shall  not  exceed 
above  two  hours  and  a  half  in  a  day,  tliat  is  to  say,  at  every  drinking 
one  half  hour,  for  his  dinner  one  hour,  and  for  his  sleep  when  he  is 
allowed  to  sleep,  the  which  is  from  the  midst  of  May  to  the  midst 
of  August,  half  an  hour  at  the  most,  and  at  every  breakfast  one 
half  hour  ;  (2)  and  all  the  said  artificers  and  labourers,  between  the 
midst  of  September  and  the  midst  of  March,  shall  be  and  continue 
at  their  work  from  the  spring  of  the  day  in  the  morning  until  the 
night  of  the  same  day,  except  it  be  in  time  afore  appointed  for 


30  ENGLISH   LAW   AS   TO 

breakfast  and  dinner  ;  (3)  upon  pain  to  lose  and  forfeit  one  penny 
for  every  hour's  absence,  to  be  deducted  and  defaulked  out  of  his 
wages  that  shall  so  ofiend. 

"  XIII.  And  be  it  also  enacted  by  the  authority  aforesaid,  That 
every  artificer  and  labourer  that  shall  be  lawfully  retained  in  and  for 
the  building  or  repairing  of  any  church,  house,  ship,  mill  or  every 
other  piece  of  work  taken  in  great,  in  task  or  in  gross,  or  that  shall 
hereafter  take  upon  him  to  make  or  finish  any  such  thing  or  work, 
shall  continue  and  not  depart  from  the  same,  unless  it  be  for  not 
paying  of  his  wages  or  hire  agreed  on,  or  otherwise  lawfully  taken 
or  appointed  to  serve  the  Queen's  majesty,  her  heirs  or  successors, 
or  for  other  lawful  cause,  or  ivithout  licence  of  the  master  or  oivner 
of  the  work,  or  of  him  1  hat  hath  the  charge  thereof,  before  the  finish- 
ing of  the  said  work  ;  (2)  upon  pain  of  imprisonment  by  one  month, 
without  bail  or  mainprise  ;  (3)  and  the  forfeiture  of  the  sum  of  five 
pounds  to  the  party  from  whom  he  shall  so  depart  ;  for  the  which 
the  said  party  may  have  his  action  of  debt  against  him  that  shall  so 
depart,  in  any  of  the  Queen's  majesty's  courts  of  record,  over  and 
besides  such  ordinary  costs  and  damages  as  may  or  ought  to  be  re- 
covered by  the  common  laws,  for  or  concerning  any  such  offence  : 
in    which   action    no  protection,    wager  of  law  or  essoin  shall  be 

admitted. 

*****  *  * 

"  XV.  And  for  the  declaration  and  limitation  ivhat  wages  servants, 
labourers  and  artificers,  either  by  the  year  or  day  or  otherwise,  shall 
have  and  receive.  Be  it  enacted  by  the  authority  of  this  present  par- 
liament. That  the  justices  of  peace  of  every  shire,  riding  and  liberty 
within  the  limits  of  their  several  commissions,  or  the  more  part  of 
them,  being  then  resiant  within  the  same,  and  the  sherifi^  of  that 
county  if  he  conveniently  may,  and  every  mayor,  bailiff  or  other 
head  ofiicer  within  any  city  or  town  corporate  wherein  is  any  justice 
of  peace,  within  the  limits  of  the  said  city  or  town  corporate,  and  of 
the  said  corporation,  shall  before  the  tenth  day  of  June  next  com- 
ing, and  afterward  shall  yearly  at  every  general  sessions  first  to  be 
holden  and  kept  after  Easter  or  at  some  time  convenient  within  six 
weeks  next  following  every  of  the  said  feasts  of  Easter,  assemble 
themselves  together  ;  (2)  and  they  (so  assembled)  calling  unto  them 
such  discreet  and  grave  persons  of  the  said  county  or  of  the  said 
city  or  town  corporate,  as  they  shall  think  meet,  and  conferring 
together,  respecting  the  plenty  or  scarcity  of  the  time  and  other  circum- 


PRIVATE   EMPLOYMENTS.  31 

stances  necessarily  to  be  considered,  shall  have  authority  by  virtue 
thereof,  within  llie  limits  and  precincts  of  their  several  commissions, 
to  limit,  rate  and  appoint  the  wages,  as  well  of  such  and  so  many  of 
the  said  artificers,  handicraftsmen,  hushandinen  or  any  other  lahoiu-er, 
servant  or  workman,  whose  wages  in  time  past  hath  been  by  any  law 
or  statute  rated  and  appointed  ;  (3)  as  also  the  wages  of  all  other 
labourers,  artificers,  workmen  or  apprentices  of  husbandry,  which 
have  not  been  rated  ;  (4)  as  they  the  same  justices,  mayors  or  head 
officers  within  their  several  commissions  or  liberties  shall  think  meet 
by  their  discretions  to  be  rated,  limited  or  appointed  by  the  year  or 
by  the  day,  week,  month  or  otherwise,  with  meat  and  drink  or  with- 
out meat  and  drink  ;  (5)  and  what  wages  every  workman  or  labourer 
shall  take  by  the  great,  for  mowing,  reaping  or  threshing  of  corn 
and  grain,  or  for  mowing  or  making  of  hay,  or  for  ditching,  paving, 
railing  or  hedging,  by  the  rod,  pearch,  lugg,  yard,  pole,  rope  or 
foot,  and  for  any  other  kind  of  reasonable  labours  or  service  ; 
(6)  and  shall  yearly  before  the  twelfth  day  of  July  next  after  the 
said  assessments  and  rates  so  appointed  and  made,  certify  the  same 
ingrossed  in  parchment,  with  the  considerations  and  causes  thereof, 
under  their  hands  and  seals,  into  the  Queen's  most  honourable  court 
of  chancery  ;  (7)  whereupon  it  shall  be  lawful  to  the  lord  chancellor 
of  England,  or  lord  keeper  of  the  great  seal  for  the  time  being,  upon 
declaration  thereof  to  the  Queen's  majesty,  her  heirs  or  successors, 
or  to  the  lords  and  others  of  the  privy  council  for  the  time  being, 
attendant  upon  their  persons,  to  cause  to  be  printed  and  sent  down 
before  the  first  day  of  September  next  after  the  said  certificate,  into 
every  county,  to  the  sheriff  and  justices  of  peace  there,  and  to  the 
said  mayor,  bailiff  and  head  officers,  ten  or  twelve  proclamations  or 
more,  containing  in  every  of  them  the  several  rates  appointed  by 
the  said  justices  and  other  head  officers,  as  is  aforesaid,  with  com- 
mandment by  the  said  proclamations,  to  all  persons,  in  the  name  of 
the  Queen's  majesty,  her  heirs  or  successors,  straightly  to  observe 
the  same,  and  to  all  justices,  sheriffs  and  other  officers,  to  see  the 
same  duly  and  severally  observed,  upon  the  danger  of  the  punish- 
ment and  forfeiture  limited  and  appointed  by  this  estatute  ;  (8)  upon 
receipt  whereof  the  said  sheriffs,  justices  of  peace  and  the  mayor 
and  head  officer  in  every  city  or  town  corporate,  shall  cause  the 
same  proclamations  to  be  entered  of  record  by  the  clerk  of  the  peace 
or  by  the  clerk  of  the  city  or  town  corporate  ;  (9)  and  the  said 
slieriffs,  justices,  and  other  the  said  mayor  and  head  officers,  shall 


32  ENGLISH   LAW   AS   TO 

forthwith  in  open  markets,  upon  the  market -days  before  Michaelmas' 
then  ensuing,  cause  the  same  proclamation  to  be  proclaimed  in 
every  city  or  market-lown  within  the  limits  of  thoir  commission,  and 
the  same  proclamation  to  be  fixed  in  some  convenient  place  of  the 
said  city  and  town,  or  in  such  of  the  most  occupied  market-towns, 
as  to  the  said  sheriffs,  justices  of  peace  and  to  the  said  mayor  and 
head  officers  shall  be  thought  meet. 


"  XVIIT.  And  be  it  further  enacted  by  the  authority  aforesaid, 
That  if  any  person  after  the  said  proclamation  shall  be  so  sent  down 
and  published,  shall  by  any  secret  ways  or  means,  directly  or  indi- 
rectly retain  or  keep  any  servant,  workman  or  labourer,  or  shall  give 
any  more  or  greater  wages  or  other  commodity,  contrary  to  the  true 
intent  and  purport  of  this  estatute,  or  contrary  to  the  rates  or  wages 
that  shall  be  assessed  or  appointed  in  the  said  proclamations  ;  that 
then  every  person  that  shall  so  offend,  and  be  thereof  lawfully  con- 
victed before  any  the  justices  or  other  head  officers  above-remem- 
bred,  or  either  of  the  said  presidents  and  councils,  shall  suffer  im- 
prisonment by  the  space  of  ten  days,  without  bail  or  mainprise,  and 
shall  lose  and  forfeit  five  pounds  of  lawful  money  of  England. 

"  XTX.  And  that  every  person  that  shall  be  so  retained  and  take 
wages  contrary  to  this  estatute  or  any  branch  thereof,  or  of  the  said 
proclamations,  and  shall  be  thereof  convicted  before  the  justices 
aforesaid,  or  any  two  of  them,  or  before  the  mayor  or  other  head 
oflicers  aforesaid,  shall  suffer  imprisonment  by  the  space  of  one  and 
twenty  days,  without  bail  or  mainprise. 

"  XX.  And  that  every  retainer,  promise,  gift  or  payment  of 
wao-es  or  other  thing  whatsoever  contrary  to  the  true  meaning  of  this 
estatute,  and  every  writing  and  bond  to  be  made  for  that  purpose, 
shall  be  utterly  void  and  of  none  effect. 

*****  *  * 

*'  XXII.  Provided  always,  and  be  it  enacted  by  the  authority 
aforesaid.  That  in  the  time  of  hay  or  corn  harvest,  i\\Q  justices  of  peace 
and  every  of  them,  and  also  the  constable  or  other  head  officer  of  every 
township  upon  request,  and  for  the  avoiding  of  the  loss  of  any  corn, 
grain  or  hay,  shall  and  may  canse  all  such  artificers  and  persons  as 
be  meet  to  labour,  by  the  discretions  of  the  said  justices  or  consta- 
bles, or  other  head  officers,  or  by  any  of  them,  to  serve  by  the  day 
for  the  mowing,  reaping,  shearing,  setting  or  inning  of  corn,  grain 


PRIVATE   EMPLOYMENTS.  33 

and  luty,  according  to  the  skill  and  quality  of  the  person  ;  (2)  and 
that  none  of  the  said  persons  shall  refuse  so  to  do,  upon  j)ain  to  suffer 
imprisonment  in  the  stocks  by  the  space  of  two  days  and  one  night  ; 
(3)  and  the  constable  of  the  town  or  other  head  officer  of  the  same, 
where  the  said  refusal  shall  be  made,  upon  complaint  to  him  made, 
shall  have  authority  by  virtue  hereof  to  set  the  said  offender  in  the 
stocks  for  the  time  aforesaid,  and  shall  punish  him  accordingly,  upon 
pain  to  lose  and  forfeit  for  not  doing  thereof  the  sum  of  forty  shill- 
ings. 

"  XXIII.  Provided  also,  That  all  persons  of  the  counties  where 
they  have  accustomed  to  go  into  other  shires  for  harvest  work,  and 
having  at  that  time  no  harvest-work  sufficient  in  the  same  town  or 
county  where  he  or  they  dwelt  in  the  winter  then  last  past,  bringing 
with  him  or  them  a  testimonial  under  the  hand  and  seal  of  one 
justice  of  the  peace  of  the  shire,  or  other  head  officer  of  the  town  or 
place  that  he  or  they  come  from,  testifying  the  same,  for  the  which 
he  shall  pay  not  above  one  penny  (other  than  such  persons  as  shall 
be  retained  in  service,  according  to  the  form  of  this  estatute)  ma]/ 
repair  and  resort  in  harvest  of  hay  or  corny  from  the  counties  wherein 
their  dwelling-places  are,  into  any  other  ^^/ace  or  county,  for  the  only 
mowing,  reaping  and  getting  of  hay,  corn  or  grain,  and  for  the  only 
working  of  harvest- works,  as  they  might  have  done  before  the 
making  of  this  estatute  ;  any  thing  herein  contained  to  the  contrary 
notwithstanding. 

"  XXIV.  And  be  it  further  enacted  by  the  authority  aforesaid. 
That  two  justices  of  peace,  the  mayor  or  other  head  officer  of  any 
city,  borough  or  town  corporate,  and  two  aldermen,  or  two  other 
discreet  burgesses  of  the  same  city,  borough  or  town  corporate,  if 
there  be  no  aldermen,  shall  and  may,  by  virtue  hereof,  appoint  any 
such  woman  as  is  of  the  age  of  twelve  years,  and  under  the  age  of 
forty  years  and  unmarried,  and  forth  of  service,  as  they  shall  think 
meet  to  serve,  to  be  retained  or  serve  by  the  year,  or  by  the  week 
or  day,  for  such  wages,  and  in  such  reasonable  sort  and  manner  as 
they  shall  think  meet  ;  (2)  and  if  any  such  woman  shall  refuse  so 
to  serve,  then  it  shall  be  lawful  for  the  said  justices  of  peace,  mayor 
or  head  officers,  to  commit  such  woman  to  ward,  until  she  shall  be 
bounden  to  serve  as  is  aforesaid. 

"  XXV.  And  for  the  better  advancement  of  husbandry  and  tillage, 
and  to  the  intent  that  such  as  are  fit  to  be  made  apprentices  to  hus- 
bandry, may  be  bounden  thereunto  ;  (2)  be  it  enacted  by  the  author- 


34  ENGLISH  LAW   AS  TO 

ity  of  this  present  parliament,  That  every  person  being  an  hous- 
holder,  and  having  and  using  half  a  ploughland  at  the  least  in  tillage, 
may  have  and  receive  as  an  apprentice  any  person  above  the  age  of 
ten  years,  and  under  the  age  of  eighteen  years,  to  serve  in  hus- 
bandry, until  his  age  of  one  and  twenty  years  at  the  least,  or  until 
the  age  of  twenty-four  years,  as  the  parties  can  agree,  and  the  said 
retainer  and  taking  of  an  apprentice,  to  be  made  and  done  by 
indenture. 

"  XXVI.  And  be  it  further  enacted.  That  every  person  being  an 
housholder,  and  twenty-four  years  old  at  the  least,  dwelling  or  in- 
habiting, or  which  shall  dwell  and  inhabit  in  any  city  or  town  cor- 
porate, and  using  and  exercising  any  art,  mystery  or  manual  occu- 
pation there,  shall  and  may,  after  the  feast  of  Saint  John  Baptist 
next  coming,  during  the  time  that  he  shall  so  dwell  or  inhabit  in 
any  such  city  or  town  corporate,  and  use  and  exercise  any  such 
mystery,  art  or  manual  occupation,  have  and  retain  the  son  of  any 
freeman,  not  occupying  husbandry,  nor  being  a  labourer,  and  in- 
habiting in  the  same,  or  in  any  other  city  or  town  that  now  is  or 
hereafter  shall  be  and  continue  incorporate,  to  serve  and  be  bound 
as  an  apprentice  after  the  custom  and  order  of  the  city  of  London, 
for  seven  years  at  the  least,  so  as  the  term  and  years  of  such  appren- 
tice do  not  expire  or  determine  afore  such  apprentice  shall  be  of  the 
age  of  twenty-four  years  at  the  least. 

"  XXVII.  Provided  always  and  be  it  enacted,  That  it  shall  not 
be  lawful  to  any  person  dwelling  in  any  city  or  town  corporate, 
using  or  exercising  any  of  the  mysteries  or  crafts  of  a  merchant 
trafficking  by  traffick  or  trade  into  any  the  parts  beyond  the  sea, 
mercer,  draper,  goldsmith,  ironmonger,  imbroiderer  or  clothier, 
that  doth  or  shall  put  cloth  to  making  and  sale,  to  take  any  appren- 
tice or  servant  to  be  instructed  or  taught  in  any  of  the  arts,  occupa- 
tions, crafts  or  mysteries  which  they  or  any  of  them  do  use  or  exer- 
cise ;  except  such  servant  or  apprentice  be  his  son  ;  (2)  or  else  that 
the  father  and  mother  of  such  apprentice  or  servant,  shall  have,  at 
the  time  of  taking  such  apprentice  or  servant,  lands,  tenements  or 
other  hereditaments,  of  the  clear  yearly  value  of  forty  shillings  of 
one  estate  of  inheritance  or  freehold  at  the  least,  to  be  certified 
under  the  hands  and  seals  of  three  justices  of  the  peace  of  the  shire 
or  shires  where  the  said  lands,  tenements  or  other  hereditaments,  do 
or  shall  lie,  to  the  mayor,  bailiff  or  other  head  officers  of  such  city 
or  town  corporate,  and  to  be  inrolled  among  the  records  there." 


PRIVATE   EMPLOYMENTS.  35 

This  Act  (5  Eliz.  c.  4)  was  explained  and  extended  by 
the  1  Jac.  I.  c.  6,  of  which  the  third  section  read  as 
follows : 

*'  III.  Be  it  enacted  by  authority  of  this  present  parliament,  That 
the  said  statute,  and  the  authority  by  the  same  statute  given  to  any 
person  or  persons  for  assessing  and  rating  of  wages,  and  the  author- 
ity to  them  in  the  said  act  committed,  shall  be  expounded  and  con- 
strued, and  shall  by  force  of  this  act  give  authority  to  all  persons 
having  any  such  authority,  to  rate  wages  of  any  labourers,  iveaverg, 
spinsters,  and  workmen  or  workwomen  whatsoever,  either  working  by 
the  day,  week,  month,  year,  or  taking  any  work  at  any  person  or 
persons'  hand  whatsoever,  to  be  done  in  great  or  otherwise." 

This  last  statute,  which  purported  to  re- enforce  the 
statute  5  Eliz.  c.  4,  began  with  an  admission  of  the  in- 
efficiency of  that  statute  in  the  following  words  :  ' '  And 
whereas  the  said  act  hath  7iot,  according  to  the  true 
meaning  thereof^  been  duly  put  in  execution,  whereby 
the  rates  of  wages  for  poor  artificers,  labourers  and  other 
persons  whose  wages  was  meant  to  be  rated  by  the  said 
act,  have  not  heen  rated  and  proportioned  according  to 
the  plenty,  scarcity,  necessity,  and  respect  of  the  time, 
which  was  politickly  intended  by  the  said  act." 

The  Act  5  Eliz.  c.  4  was  not  repealed  until  the  year 
1875,  by  the  Conspiracy  and  Protection  of  Property  Act, 
88  &  39  Vict.  ch.  86,  sect.  17. 

Similar  in  purpose  were  the  statutes  of  diflEerent  kinds 
which  were  intended  to  regulate  the  manufacture  of  dif- 
ferent kinds  of  goods  in  respect  to  measurements  and 
quality. 

One  of  these  is  The  Statute  4  Edw.  IV.,  Cap.  I.,  en- 
titled "  The  Length  and  Breadth  of  Cloths  to  be  sold. 
No  cloths  wrought  beyond  Sea  shall  be  brought  into 
England."  It  begins  with  the  recital  "First,  Whereas 
many  years  past,  and  now  at  this  day,  the  workmanship 
of  cloths,  and  things  requisite  to  the  same,  is  and  hath 
been  of  such  fraud,  deceit,  and  falsity,  that  the  said 
cloths   in   other  lands  and   countries   be  had  in  small 


36  ENGLISH   LAW   AS   TO 

reputation,  to  the  great  shame  of  this  land  ;  (2)  and  by 
reason  thereof  a  great  quantity  of  cloths  of  other 
strange  lands  be  brought  into  this  realm,  and  here  sold 
at  an  high  and  excessive  price,  evidently  showing  the 
offence,  default,  and  falshood  of  the  making  of  woolen 
cloths  of  this  land."  The  Statute  then  proceeds  to  pre- 
scribe the  length  and  breadth  of  different  kinds  of  cloths, 
and  prohibits  the  use  of  certain  materials  in  making  them. 
It  also  enacts,  that  "every  of  the  said  cloths  and  half 
cloths  shall  perfectly  and  rightly  pursue  and  follow  one 
order  of  workmanship  from  one  end  to  the  other,"  and 
til  at  a  seal  of  lead  shall  be  set  on  faulty  cloths.  It  also 
provides  that  every  clothmaker  shall  pay  his  carders, 
sj^insters  and  other  laborers  in  lawful  money,  and  that 
every  such  laborer  "  shall  duly  perform  his  duty  in  his 
occupation." 

Another  Statute  of  the  same  character  was  the  Statute 
7  Edw.  IV.  Cap.  I.,  "For  making  of  worsteds."  It 
begins  by  reciting  "  For  that  there  be  as  well  within  the 
City  of  Norwich,  as  elsewhere  within  the  County  of  Nor- 
folk, divers  persons  which  do  make  untrue  wares  of  all 
manner  of  worsteds,  not  being  of  the  assise  in  length 
nor  in  breadth,  nor  of  good  stuff  and  right  making  as 
they  ought  to  be,  and  of  old  time  were  accustomed,  and 
the  sleyes  and  yarn  pertaining  to  the  same  not  well  made 
and  wrought,  in  great  deceit  as  well  of  denizens  as  of 
strangers  inhabiting  or  rej^airing  to  this  realm,  which 
have  used  and  do  use  to  buy  such  merchandises,  trusting 
that  they  were  within  as  they  seemed  without,  where 
indeed  it  is  contrary  :  (2)  And  for  that  the  worsteds  in 
times  past  were  lawfully  wrought,  and  merchandise  well 
liked,  and  greatly  desired  and  esteemed  in  the  parts 
beyond  the  sea  ;  now  because  they  be  of  no  right  mak- 
ing, nor  good  stuff,  they  be  reported  and  esteemed  de- 
ceitful and  unlawful  merchandise,  and  of  little  regard, 
to  the  great  damage  of  our  lord  the  King,  and  great 
prejudice  of  his  loyal  subjects."  The  Act  then  proceeds 
to  empower  the  worsted  weavers  in  the  City  of  Norwich 


PRIVATE   EMPLOYMENTS.  37 

to  choose  four  wardens,  who  "  shall  have  full  power  for 
the  year  then  next  following  to  survey  the  workman- 
ship  of  the  said  artificers,  and  that  they  make  and  work 
rightfully  and  well,  and  of  good  stuff,  and  to  ordain 
such  rules  and  ordinances  within  the  said  craft  as  often 
as  it  shall  seem  needful  or  necessary  for  the  amendment 
of  the  said  worsteds  and  craft."  The  Act  then  pre- 
scribes the  length  and  breadth  of  Worsteds,  and  gives 
the  wardens  power  to  seize  all  defective  cloths  and  stuff, 
giving  them  a  power  of  search  for  the  purposes  of  the 
execution  of  the  Act. 

These  statutes  are  quoted  at  some  length,  for  two  pur- 
poses :  the  one  is,  to  show  how  thorough  and  complete 
was  the  experience  already  had  under  the  English  law 
prior  to  our  separation  from  the  mother  country,  in  at- 
tempts to  control  trade  and  commerce,  and  especially 
prices,  by  statute  ;  the  other  is,  to  show  the  magnitude 
and  intricacy  of  the  undertaking  which  lies  before  legis- 
lators of  the  present  day,  if  they  enter  on  that  line  of 
legislation.  Utterly  hopeless,  and  utterly  fruitless,  in 
anything  save  annoyance,  all  such  legislation  always  has 
been,  and,  so  far  as  we  can  form  a  judgment  in  the  light 
of  history,  always  will  be. 

It  will  appear,  too,  that  the  latest  attempts  in  this  coun- 
try to  control  the  so-called  "  trusts"  and  "  monopolies" 
of  to-day  are  on  the  same  line  with  these  statutes  liere  set 
forth. 

In  addition  to  all  these  statutes,  intended  to  fix  directly 
the  prices,  and  quality,  of  labor  and  merchandise,  by 
their  operation  on  laborers  and  producers,  we  find  an- 
other wholly  different  class  of  legislation,  the  purpose  of 
which  was  to  prevent  any  raising  of  the  prices  of  mer- 
chandise, by  wholesale  dealers  and  middlemen.  These 
wholesale  dealers  and  middlemen  were  in  the  ancient 
statutes  grouped  together  under  the  terms  "  forestallers," 
"  regrators,"  and  "  engrossers." 

Although  the  assertion  has  been  often  made  that  "  fore- 
stalling," "  regrating,"  and  "engrossing"  were  criminal 


38  ENGLISH   LAW    AS   TO 

offenses  at  the  common  law,  a  careful  examination  shows, 
that  these  offenses  were  made  crimes  by  statute  from  a 
very  early  period  ;  and  there  is  no  authentic  record,  which 
my  efforts  have  been  able  to  discover,  of  the  existence  of 
either  of  these  offenses  prior  to  those  statutes,  which  are 
cited  by  Coke,  in  the  third  volume  of  his  Institutes. 
The  earliest  statute  of  this  kind  after  the  Norman  con- 
quest, which  it  is  necessary  to  mention,  is  the  Act  25  Edw. 
III.  Stat.  4,  A.D.  1350,  which  reads  as  follows  : 

"CAP.  III. 

"  The  penalty  of  him  that  doth  forestal  ivares,  merchandise,  or 
victual. 

"  Item,  it  is  accorded  and  established,  That  the  forestallers  of 
wines,  and  all  other  victuals,  wares,  and  merchandises  that  come  to 
the  good  towns  of  England  by  land  or  by  water,  in  damage  of  our 
lord  the  King  and  of  his  people,  if  they  be  thereof  attainted  at  the 
suit  of  the  King,  or  of  the  party,  before  mayor,  bailiff,  or  justices 
thereto  assigned,  or  elsewhere  in  the  King's  court  ;  and  if  they  be 
attainted  at  the  King's  suit  by  indictment,  or  in  other  manner,  the 
things  forestalled  shall  be  forfeited  to  the  King,  if  the  buyer  thereof 
hath  made  gi'ee  to  the  seller  ;  (2)  and  if  he  have  not  made  gree  of 
all,  but  by  earnest,  the  buyer  shall  incur  the  forfeiture  of  as  much 
as  the  forestalled  goods  forfeited  do  amount  to,  after  the  value  as 
h3  bought  them,  if  he  have  wherjof  ;  (3)  and  if  he  have  not 
whereof,  then  he  shall  have  two  years'  imprisonment,  and  more,  at 
the  King's  will,  without  being  let  to  mainprise,  or  delivered  in  other 
manner  ;  (4)  and  if  he  be  attainted  at  the  suit  of  the  party,  the 
party  shall  have  the  one  half  of  such  things  forestalled  and  forfeit, 
or  the  price,  of  the  King's  gift,  and  the  King  the  other  half." 

Thereafter  came  the  Act  3  &  4  Edw.  YI.,  Cap.  XXL, 
"  An  act  for  the  buying  and  selling  of  butter  and  cheese, " 
which  provided,  "  Be  it  enacted  by  the  authority  of  this 
present  parliament.  That  no  person  or  persons  after  the 
feast  of  the  Annunciation  of  our  Lady  next  coming,  shall 
buy  to  sell  again  any  butter  or  cheese,  unless  he  or  they 
sell  the  same  again  by  retail  in  open  shop,  fair  or  mar- 
ket, and  not  in  gross :  (2)  upon  pain  of  f orefeiture  of  the 


PRIVATE   EMPLOYMENTS.  39 

double  value  of  the  same  butter  and  cheese  so  sold  con- 
trary to  the  tenor  of  this  present  act. '' 

Thereafter  came  the  Statute  5  &6  Edward  VI.,  Cap. 
XIV.,  entitled  "  An  Act  against  Regrators,  Forestallers, 
and  Ingrossers,"  which  gave  a  general  definition  of  these 
offenses,  and  provided  their  punishments.  Section  I  pro- 
vided, "  that  whatsoever  person  or  persons,  that  after 
the  first  day  of  May  next  coming  shall  buy  or  cause  to  be 
bougJit,  any  mercJiandise,  victual^  or  annj  other  tiling 
whatsoever,  coming  by  land  or  by  water  toward  any 
market  or  fair  to  be  sold  in  the  same,  or  coming  toward 
any  city^  port^  haven,  creek  or  road  of  this  realm  or 
Wales,  from  any  parts  beyond  the  sea  to  be  sold,  (3)  or 
make  any  bargain,  contract  or  promise,  for  the  having  or 
buying,  of  the  same  or  any  part  thereof  so  coming  as 
aforesaid,  before  the  said  merchandise,  victuals  or  other 
things,  shall  be  in  the  market,  fair,  city,  port,  haven, 
creek  or  road,  ready  to  be  sold  ;  (4)  or  shall  make  any 
motion  by  word,  letter,  message  or  otherwise,  to  any 
person  or  persons,  for  the  inhancing  of  the  price  or 
dearer  selling  of  any  thing  or  things  above  mentioned, 
(5)  or  else  dissuade,  move  or  stir  any  person  or  persons 
coming  to  the  market  or  the  fair,  to  abstain  or  forbear 
to  bring  or  convey  any  of  the  things,  above  rehearsed,  to 
any  market,  fair,  city,  port,  haven,  creek  or  road  to 
be  sold,  as  is  aforesaid,  (6)  shall  be  deemed,  taken,  and 
adjudged  ^iforestaller.'''' 

Section  II.  provided,  "  That  whatsoever  person  or  per- 
sons, that  after  the  said  first  day  of  May  shall  by  any 
means  regrate,  obtain,  or  get  into  his  or  their  hands  or 
possession,  in  any  fair  or  market,  any  corn,  wine, 
fish,  butter,  cheese,  candles,  tallow,  sheep,  lambs, 
calves,  swine,  pigs,  geese,  capons,  hens,  chickens, 
pigeons,  conies,  or  other  dead  victual  whatsoever,  that 
shall  be  brought  to  any  fair  or  market  within  this  realm 
or  Wales  to  be  sold,  and  do  sell  the  same  again  in  any 
fair  or  market  holden  or  kept  in  the  same  place,  or  in 
any  other  fair  or  market  within  four  miles  thereof. 


40  ENGLISH   LAW   AS   TO 

shall  be  accepted,  reputed  and  taken  for  a  regrator  or 
regrators.'''' 

Section  III.  provided,  "  That  whatsoever  person  or 
persons,  that  after  the  said  first  day  of  May  shall  ingross 
or  get  into  Ms  or  their  hands  hy  buying,  contracting,  or 
promise-taking,  other  than  by  demise,  grant,  or  lease 
of  land  or  tithe,  any  corn  growing  in  the  fields,  or  any 
other  corn  or  grain,  butter,  cheese,  fish,  or  other  dead 
victuals  whatsoever,  within  the  realm  of  England,  to  the 
intent  to  sell  the  same  again,  shall  be  accepted,  reputed 
and  taken  an  unlawful  ingrosser  or  ingrossers.'''' 

Section  VII.  contained  certain  specific  exceptions  to  the 
sweeping  general  provisions  of  the  act,  such  as  the  cases 
of  innkeepers  buying  for  the  purpose  of  selling  to  their 
guests,  fishmongers,  butchers,  and  poulterers  buying 
' '  such  thing  ...  as  concern  his  or  their  own  faculty, 
craft  or  mystery  (otherwise  than  by  forestalling),  which 
shall  sell  the  same  again  upon  reasonable  prices  hy  re- 
tail,'''' with  others  which  need  not  here  be  mentioned. 

Section  IX.  prohibited  the  sale  of  cattle  and  sheep  by 
any  person  within  five  weeks  after  his  purchase  thereof. 
Section  XIII.  allowed  any  person  to  ''  buy,  engross  and 
keep  in  his  or  their  granaries  or  houses,  such  corn  of 
the  kinds  aforesaid' '  as  should  be  bought  under  prices 
specified  in  the  act,  "  at  all  times  hereafter,  when  wheat 
shall  be  commonly  at  the  price  of  vi.  s.  viii.  d.  the  quar- 
ter or  under,"  and  when  other  grains  should  bounder 
certain  other  specified  prices. 

As  to  this  act  and  other  similar  acts,  it  is  to  be  noted, 
that  no  distinction  is  made  between  the  acts  of  single  indi- 
viduals, and  of  combinations  of  individuals.  The  crime 
consisted  in  "buying  to  sell  again,"  in  "making  any 
motion  by  word,  letter,  message,  or  otherwise  .  .  ,  for  the 
inhancing  of  the  price  or  dearer  selling  of  anything  or 
things  above  mentioned,"  in  "getting  into  his  or  their 
hands  by  buying,  contracting,  or  promise-taking  ...  to 
the  intent  to  sell  again.'' ^  It  was  the  attemjDt  to  raise 
prices  which  constituted  the  crime.     The  crime  was  the 


PRIVATE   EMPLOYMENTS.  41 

same,  whether  committed  by  one  person  singly,  or  by  sev- 
eral persons  in  combination.  It  is  evident  that  these 
statutes,  as  to  "  regrating,"  "  ingrossing,"  and  "fore- 
stalling," were  part  of  the  comprehensive  attempt  to  con- 
trol prices  by  statute. 

The  Act  5  &  6  Edward  VI.,  Cap.  XY.,  entitled  "  An 
Act  against  Regrators  and  Ingrossers  of  Tanned  Leather," 
provided  "  That  from  and  after  the  first  day  of  May  next 
coming,  no  person  or  persons,  of  what  estate,  degree  or 
condition  soever  he  or  they  be,  shall  buy  or  engross^  or 
cause  to  be  bought  or  engrossed,  any  kind  of  tanned 
leather,  to  the  intent  to  sell  the  same  again.''''  Other 
sections  allowed  saddlers,  cordwainers  and  other  artifi- 
cers to  buy  such  quantities  of  leather  as  should  be  nec- 
essary for  the  carrying  on  of  their  trades.  Section  Y. 
prohibited  altogether  the  shipping  of  boots,  shoes  and 
similar  articles  "  to  the  intent  to  carry,  transport  or  con- 
vey over  the  seas  as  merchandise  to  be  sold  or  exchanged 
there."  Section  YII.  provided  "  That  no  sadler,  girdler, 
cordwainer,  nor  other  artificer,  dwelling  within  the  City 
of  London  and  t?he  suburbs  of  the  same,  which  shall  cut 
the  same  tanned  leather  as  is  aforesaid,  to  the  intent  to 
make  wares  thereof,  shall  curry  or  dress  any  of  the  afore- 
said tanned  leather  in  his  or  their  own  house  or  houses, 
or  by  his  or  their  servant  or  servants." 

It  is  seen,  that  these  and  other  similar  statutes,  if  en- 
forced, would  have  compelled  producers  to  be  their  own 
salesmen,  would  have  abolished  the  occupation  of  the 
middleman  or  merchant,  and  made  utterly  impossible  the 
trade  and  commerce  which  experience  has  shown  to  be 
necessary  for  the  life  of  all  large  communities.  Buying 
and  selling  at  wholesale  is  ahvays  conducted  with  the 
purpose  of  "  inhancing  prices."  It  is  a  commercial  proc- 
ess which  is  absolutely  necessary,  in  order  to  ensure  the 
presence  in  the  market  of  merchandise  in  quantities  suffi- 
ciently large,  to  supply  the  needs  of  large  communities. 
Such  statutes  could  be  passed  only  in  a  rudimentary  stage 
of  society,  when  its  needs  are  imperfectly  comi^rehended, 


42  ENGLISH   LAW   AS   TO 

and  when  the  actual  practical  results  of  such  legislation 
have  not  been  ascertained  by  experience. 

So  far  the  protection  of  the  law  had  been  in  the  main 
given  to  buyers.  But  every  member  of  the  community 
is  a  seller  as  well  as  a  buyer.  He  is  a  seller  of  his  own 
labor,  or  of  its  products.  He  is  a  buyer  of  the  labor  of 
others,  or  of  its  products.  In  the  one  capacity,  he  is 
no  more  entitled  to  artificial  and  arbitrary  aid  from 
the  law,  than  he  is  in  the  other.  But  if  this  were  not  so, 
if  the  entire  community  were,  in  fact,  divided  into  two 
distinct  classes,  of  buyers  and  sellers,  if  the  law  under- 
takes to  keep  prices  down  for  the  benefit  of  buyers,  it  is 
also  under  the  obligation  to  keep  prices  up  for  the  benefit 
of  sellers. 

This  obligation  the  lawgivers  of  the  time  recognized  and 
accepted. 

Accordingly  we  find  statutes  passed  with  the  intent  of 
keej)ing  prices  up.  Of  such  we  find  an  example  in  the 
Acts  14  Rich.  II.,  Cax>.  IV.  and  VI.,  which  are  as  fol- 
lows : 

14  Richard  II.,  A.D.  1390. 

"CAP.  IV. 

"  Of  whom  denizens  may  buy  wools,  and  where  ;  but  they  shall 
not  regrate  them. 

''  Item,  to  keep  the  price  of  wools  the  better,  That  no  denizen  of 
England,  shall  buy  no  wools  but  of  the  owners  of  the  sheep  and  of 
the  tithes,  except  in  the  staple  :  and  that  no  denizen  regrate  wools 
nor  other  merchandises  of  the  staple  privily  nor  apertly,  upon  pain 
to  forfeit  the  value  of  the  thing  regrated  :  and  that  the  justices  of 
peace  in  the  country  have  power  to  enquire,  and  shall  enquire  from 
time  to  time  of  such  English  regrators  and  of  the  weights  of  the 
staple,  and  punish  them  by  the  pain  aforesaid.  And  that  no  Eng- 
lishman buy  any  wool  of  any  person,  but  for  himself  or  for  his  own 
use,  as  to  sell  at  the  staple,  and  for  to  make  cloth.'^ 

"CAP.  VI. 

"  English  merchants  shall  freight  only  in  English  ships. 

"  Item,  That  all  merchants  of  the  realm  of  England  shall  freight 


PRIVATE   EMPLOYMENTS.  43 

in  the  said  realm  tlie  sliips  of  the  said  reahn,  and  not  strange  ships  ; 
so  that  the  owners  of  the  said  ships  take  reasonable  gains  for  the 
freight  of  the  same." 

In  the  same  line  of  legislation,  for  like  purposes,  were 
the  class  of  statutes  which  were  absolutely  prohibitory 
of  trade  and  commerce  of  certain  classes.  Such  was  the 
Act  14  Rich.  II.,  Cap.  Y.,  which  is  as  follows  : 

"CAP.  V. 

"  No  denizen  shall  transport  any  merchandise  of  the  staple  forth 
of  the  realm. 

"  Item,  That  no  denizen  carry  wools,  leather,  woolfels,  nor  lead 
out  of  the  realm  of  England,  to  the  parties  beyond  the  sea,  upon 
pain  of  forfeiture  of  the  same,  but  only  strangers." 

So,  too,  we  find  specimens  of  limited  prohibition  for 
the  purpose  of  the  special  protection  of  a  particular  local- 
ity, of  which  the  14  Rich.  II.,  Cap.  VII.,  is  an  examx)le. 

"CAP.  VII. 

"  Tin  shall  pass  forth  of  the  realm  only  at  Dartmouth. 
'•  Item,  that  the  passage  of  tin  out  of  the  realm  shall  be  at  the 
port  of  Dartmouth,  and  in  no  place  else." 

The  statutes  against  forestalling,  regrating,  and  en- 
grossing, as  we  have  seen,  were  directed  against  all  at- 
tempts to  raise  prices,  whether  on  the  part  of  single  indi- 
viduals, or  of  individuals  in  combination.  At  an  early 
period,  however,  statutes  were  passed  giving  a  criminal 
character  to  attempts  of  the  same  kind  by  individuals  in 
combination.  It  was  made  a  crime,  to  combine  or  con- 
federate to  raise  jDrices.  Combinations  to  raise  prices  of 
labor  were  placed  on  the  same  legal  footing  with  com- 
binations to  raise  prices  of  merchandise. 

The  earliest  statute  of  this  nature,  which  has  come 
under  my  observation,  is  the  Statute  2  &  3  Edw.  YI., 


44  ENGLISH   LAW   AS   TO 

c.  15,  entitled  "The  bill  of  conspiracies  of  victnallers  and 
craftsmen." 

Prior  to  this  statute  the  crime  of  conspiracy  was  vir- 
tnally  limited  to  illegal  combinations  having  some  connec- 
tion with  the  administration  of  justice.  The  crime  was 
defined  by  the  Statute  33  Edw.  I,,  quoted  by  Hawkins  in 
his  "  Pleas  of  the  Crown."  In  his  definition  of  the  crime 
of  conspiracy  Hawkins  begins  by  stating 

"As  to  the  First  Point,  viz.,  Who  may  be  said  to  be  guilty  of 
Conspiracy,  Sect.  1.  There  can  be  no  better  rule  than  the  statute  of 
33  or  rather  21  Edw.  I.,  the  intent  whereof  was  to  make  a  final  defi- 
nition of  CONSPIRATORS,  to  which  purpose  it  declared  "  that  con- 
spirators be  they  that  do  confeder  or  bind  themselves  by  oath, 
covenant,  or  other  alliance,  that  every  of  them  shall  aid  and 
bear  the  other  falsly  and  maliciously  to  indict,  or  cause  to  indict,  or 
falsly  to  move  and  maintain  pleas  ;  and  also  such  as  cause  children 
within  age  to  appeal  men  of  felony,  whereby  they  are  imprisoned 
and  sore  grieved  ;  and  such  as  retain  men  in  the  country  with 
liveries  or  fees  for  to  maintain  their  malicious  enterprizes  ;  and  this 
extendeth  as  well  to  the  takers  as  to  the  givers  ;  and  to  stewards 
and  bailiffs  of  great  lords,  who  by  their  seigniory,  office,  or  power, 
undertake  to  bear  or  maintain  quarrels,  pleas,  or  debates  that  con- 
cern other  parties  than  such  as  touch  the  estate  of  their  lords  or 
themselves." 

No  doubt  in  time  other  conspiracies  came  to  be  recog- 
nized in  addition  to  those  there  described.  But  so  far 
as  appears  by  any  record  which  has  come  under  my  ob- 
servation, a  mere  combination  to  raise  prices  was  not 
punishable  as  a  conspiracy  prior  to  the  passage  of  that 
Act,  2  &  3  Edw.  VI.,  c.  15. 

The  Act  was  as  follows  : 

"  Forasmuch  as  of  late  divers  sellers  of  victuals,  not  contented 
with  moderate  and  reasonable  gain,  but  minding  to  have  and  to  take 
for  their  victuals  so  much  as  list  them,  have  conspired  and  cove- 
nanted together  to  sell  their  victuals  at  unreasonable  prices  ;  (2)  and 
likewise  artificers,  handicraftsmen  and  labourers  have  made  confeder- 
acies and  promises,  and  have  sworn  mutual  oaths  not  only  that  they 
should  not  meddle  one  with  another's  work,  and  perform  and  finish 


PRIVATE   EMPLOYMENTS.  45 

tliat  another  hath  begun,  but  also  to  constitute  and  appoint  how 
much  work  they  shall  do  in  a  day,  and  what  hours  and  times  they 
shall  work,  contrary  to  the  laws  and  statutes  of  this  realm,  and  to 
the  great  hurt  and  impoverishment  of  the  King's  majesty's  subjects  ; 
(3)  for  reformation  thereof  it  is  ordained  and  enacted  by  the  King 
our  sovereign  lord,  the  lords  and  commons  in  this  present  parlia- 
ment assembled,  and  by  the  authority  of  the  same.  That  if  any 
butchers,  brewers,  bakers,  poulterers,  cooks,  costermongers  or 
fruiterers,  shall  at  any  time  from  and  after  the  first  day  of  March 
next  coming,  conspire,  covenant,  promise  or  make  any  oaths,  that 
they  shall  not  sell  their  victuals  but  at  certain  prices  ;  (4)  or  if  any 
artificers,  workmen,  or  labourers  do  conspire,  covenant  or  promise 
together,  or  make  any  oaths,  that  they  shall  not  make  or  do  their 
works  but  at  a  certain  price  or  rate,  or  shall  not  enterprize  or  take 
upon  them  to  finish  that  another  hath  begun,  or  shall  do  but  a  cer- 
tain work  in  a  day,  or  shall  not  work  but  at  certain  hours  and  times, 
(5)  that  then  every  person  so  conspiring,  covenanting,  swearing  or 
offending,  being  lawfully  convict  thereof  by  witness,  confession  or 
otherwise,  shall  forfeit  for  the  first  offence  ten  pounds  to  the  King's 
highness"  with  provisions  for  higher  penalties  for  later  offences. 

"  II.  And  if  it  fortune  any  such  conspiracy,  covenant  or  promise 
to  be  had  and  made  by  any  society,  brotherhood  or  company  of  any 
craft,  mystery  or  occupation  of  the  victuallers  above  mentioned, 
with  the  presence  or  consent  of  the  more  part  of  them,  that  then 
immediately  upon  such  act  of  conspiracy,  covenant  or  promise  bad 
or  made,  over  and  besides  the  particular  punishment  before  in  this 
act  appointed  for  the  offender,  their  corporation  shall  be  dissolved 
to  all  intents,  constructions  and  purposes." («) 

This  statute,  it  is  apparent,  was  one  stejD  in  the  general 
system  of  legislation,  of  which  the  purpose  was  to  regu- 
late prices  by  statute.  Under  this  statute,  too,  it  is  ap- 
parent, that  any  combination  to  raise  prices  was  a  crime, 
even  if  strictly  limited  in  its  intended  effect  to  the 
prices  of  the  labor  or  merchandise  of  the  combining 
parties,  and  involving  no  interference  with  the  legal 
rights  of  others. 

Especially  is  it  to  be  noted,  that  this  crime  of  conspir- 

{a)  Repealed  with  a  long  list  of  other  statutes,  5  Geo.  IV.,  c.  95. 


46  ENGLISH  LAW  AS  TO 

acy,  as  defined  by  the  statute  itself,  consisted  in  a  com- 
bination to  raise  prices  and  fix  hours  of  work  "  contrary 
to  the  laws  and  statutes  of  this  realm."  The  mere  com- 
bination constituted  no  crime  provided  there  were  to  be 
no  ultimate  act  which  was  unlawful.  It  was  necessary 
that  the  act,  which  was  the  object  of  the  combination, 
should  be  in  itself  a  violation  of  law  or  statute.  And 
that  has  always  been  the  well-established  doctrine  of  the 
English  law,  as  well  as  of  the  American  law,  until  the 
recent  decisions  before  alluded  to. 

So  far  as  concerned  combinations  to  raise  the  prices  of 
merchandise,  this  Act  seems  to  have  been  a  dead  letter 
from  the  very  time  of  its  passage.  It  was  apparently 
ignored  by  common  consent.  Hardly  a  pretence  was  ever 
made  of  enforcing  it.  Even  as  to  combinations  to  raise 
prices  of  labor,  it  practically  never  formed  part  of  the 
living  body  of  the  English  law.  Only  one  conviction,  so 
far  as  my  reading  has  been  able  to  discover,  was  ever 
had  under  it  on  a  mere  combination  to  raise  the  price  of  the 
labor  of  the  combining  parties,  when  such  combination 
was  unaccomj)anied  by  an  unlawful  interference  with  the 
legal  rights  of  others.  That  was  the  case  of  Rex  v.  Jour- 
neymen Taylors  of  Cambridge^  8  Modern,  11.  There 
have,  no  doubt,  been  many  cases  of  indictments  for  com- 
binations by  workmen,  when  those  conibinations  have 
been  accompanied  by  unlawful  interference  with  the  legal 
rights  of  others.  But  the  case  just  mentioned  is  the  only 
reported  case,  which  I  have  been  able  to  find,  of  a  con- 
viction, or  even  of  a  trial,  for  a  mere  combination  to  raise 
the  prices  of  the  labor  of  the  combining  parties.  As  to 
prices  of  merchandise,  however,  I  have  been  unable  to 
discover  a  single  reported  case  of  a  prosecution  for  a  com- 
bination to   raise  or  maintain   such  prices,  (a)     Black- 


{a)  Bex  V.  Norris,  2  Ld.  Kenyon.  300,  can  be  hardly  called  a  prosecution, 
being  according  to  the  report  only  an  ex  parte  application  for  leave  to  file 
an  information,  accompanied  by  some  language  from  Lord  Mansfield. 

If,  however,  that  case  be  deemed  "  a  prosecution,"  it  was  a  case  arising 


PRIVATE  EMPLOYMENTS.  47 

stoiie,  in  that  part  of  his  Commentaries  which  treats  of 
the  crime  of  conspiracy,  makes  no  mention  of  a  com- 
bination to  raise  or  maintain  prices,  whether  of  merchan- 
dise or  labor,  {a)  He  treats  the  crime  of  conspiracy 
almost  entirely  as  an  offense  connected  with  the  ad- 
ministration of  justice.  What  he  says  of  it  is  com- 
prised in  his  Chapter  X.  of  Book  IV.,  which  is  en- 
titled "  Of  Offenses  against  Public  Justice."  Serjeant 
Hawkins,  in  his  "  Pleas  of  the  Crown,"  follows  the  same 
course,  and  treats  the  offense  of  conspiracy  almost  wholly 
as  one  connected  with  the  administration  of  justice. 
Neither  does  he  make  any  mention  of  a  conspiracy  to 
raise  or  maintain  prices,  of  either  labor  or  merchandise. 

But  as  to  mere  combinations  to  raise  or  maintain  the 
prices  of  merchandise,  I  have  failed  to  find  any  evidence 
that  such  a  combination  was  ever  practically  treated  as  a 
criminal  offense,  save  that  it  was  nominally  made  such 
by  the  language  of  the  statute  above  quoted.  That 
statute  was  repealed,  as  a  matter  of  form,  by  the  Statute 
5,  George  IV.,  chap,  95.  But,  as  a  matter  of  fact,  and 
substance,  it  had  been  ignored  by  the  entire  community 
from  the  time  of  its  passage.  At  the  time  of  the  writing 
of  Blackstone's  Commentaries  it  had  become  an  obsolete 
antiquity. 

As  to  the  prices  of  labor,  the  various  later  amending 
statutes  as  to  combinations  or  conspiracies  of  workmen 
all  recognized  the  right  of  workmen  to  make  combina- 
tions merely  to  raise  the  prices  of  their  own  labor,  so 
long  as  they  refrained  from  violence,  intimidation,  or 
other  unlawful  interference  with  the  rights  of  others. 
So,  too,  did  the  opinions  of  the  courts.  Other  than  the 
case  of  Hex  v.  Journeymen  Taylors  of  Cambridge^  I  find 
no  case  in  the  English  reports  where  workmen  were  con- 
victed for  a  mere  peaceable  and  orderly  combination  to 
raise  their  own  wages. 

under  the  statute  before  quoted,  which,  according  to  the  authorities,  never 
formed  part  of  our  American  law. 
(a)  4  Blackstone  Com.  136. 


48  ENGLISH   LAW   AS   TO 

By  the  Act  12  Geo.  III.,  chap.  71,  A.D.  1772,  the 
statutes  as  to  forestalling,  regrating,  and  engrossing  were 
repealed.  The  intention  evidently  was  both  to  repeal 
them,  and  to  abolish  the  offenses. 

The  reason  given  for  the  repeal  in  the  preamble  of  the 
Act  is  as  follows  :  "  Whereas  it  hath  been  found  by 
experience,  that  the  restraints  laid  hy  several  statutes 
upon  the  dealing  in  corn,  meal,  flour,  cattle,  and  sundry 
other  sorts  of  victuals,  by  preventing  a  free  trade  in  the 
said  commodities,  have  a  tendency  to  discourage  the 
growth,  and  to  inhance  the  price  of  the  same  ;  which 
statutes,  if  put  in  execution,  would  bring  great  distress 
upon  the  inhabitants  of  many  parts  of  tJiis  Kingdom, 
and  in  particular  upon  those  of  the  cities  of  London  and 
Westminster." 

Although  it  was  evidently  the  intention  of  the  legisla- 
ture, by  this  statute  not  merely  to  repeal  the  former 
statutes  as  to  forestalling,  regrating,  and  engrossing,  but 
also  to  abolish  the  offenses,  Lord  Kenyon  nevertheless 
held  in  Rex  v.  Waddington,  1  East,  167,  that  those 
offenses  had  been  offenses  at  common  law ;  and  conse- 
quently that  the  offenses  had  not  been  abolished  by  the 
mere  repeal  of  the  statutes.  To  meet  this  situation,  a 
later  statute  was  passed,  7  &  8  Victoria,  Cap.  XXIV., 
A.D.  1844,  which  in  express  terms  abolished  the  offenses. 
No  authority  exists,  so  far  as  I  have  been  able  to  find, 
for  this  decision  of  Lord  Kenyon.  It  is  somewhat  sin- 
gular, too,  that  the  original  statutes  creating  those  offenses 
should  have  been  passed,  if  the  offenses  existed  already. 
It  is  also  very  clear,  that  the  lawyers  who  drafted  the 
repealing  act  would  have  abolished  the  offenses,  if  they 
had  supposed  that  the  offenses  still  continued  to  exist  at 
common  law. 

In  Rex  V.  Waddington  there  was  a  remarkable  array 
of  counsel,  including  Erskine,  for  the  prosecution  ;  and 
the  indications  are  very  strong,  that  the  prosecution  was 
merely  the  work  of  business  rivals.  The  prosecution  was 
not  for  conspiracy,  but  for  the  mere  offense  of  engrossing, 


PRIVATE  EMPLOYMENTS.  49 

by  a  single  individual.  Lord  Kenyon,  in  his  opinion, 
dilated  on  the  dreadful  dangers  from  such  practices  on  the 
part  of  single  individuals.  With  the  exception  of  this 
Waddlngton  case,  my  examinations  have  failed  to  find  any 
cases  of  trials  for  either  of  those  antiquated  offenses.  It 
is,  therefore,  an  accurate  statement,  that  the  statutes 
creating  these  offenses  by  individuals  were  virtually 
ignored,  almost  from  the  time  of  their  passage.  That 
fact  admits  of  only  one  explanation,  which  is,  that  no 
practical  injury  ever  resulted  from  the  business  of  buying 
and  selling  at  wholesale,  which  is  invariably  conducted 
with  the  intent  of  selling  at  an  advanced  price. 

The  same  thing  can  be  said  as  to  combinations  to  put 
np  the  prices  of  merchandise  on  the  part  of  several 
individuals  in  combination.  Without  doubt  there  were 
numberless  instances  of  such  combinations.  Such  com- 
binations, too,  under  the  statutes  above  mentioned 
were  criminal  offenses.  But  we  fijid  no  records  in  the  re- 
ports, of  prosecutions  for  such  offenses,  unless  Rex  v. 
Norris^  before  cited,  be  such  a  case. (a)  The  evident 
reason  is  that  such  combinations  did  no  harm. 

With  these  repealing  and  abolishing  statutes,  the  law 
in  England  was  finally  established,  permitting  any  and  all 
efforts  to  merely  raise  prices,  whether  of  labor  or  mer- 
chandise, whether  on  the  part  of  single  individuals  or 
individuals  in  combination,  provided  those  efforts  were 
limited  to  the  prices  of  the  labor  and  merchandise  of  the 
parties  making  the  attempts,  and  provided  also  that  the 
efforts  were  accompanied  by  no  legal  injury  to  others. 
Contracts  of  combination,  to  raise  or  maintain  prices,  or  to 
prevent  competition,  were  not  enforced  by  the  courts. 
But  they  were  never  held  to  be  criminal.  Nor  were 
obey  held  to  be  violations  of  the  legal  rights  of  other 
individuals. 

As  to  such  combinations,  the  most  important  and  in- 
structive case  in  the  English  reports,  so  far  as  my  read- 

(a)  Rex  V.  Norris,  2  Ld.  Kenyon,  300. 


50  ENGLISH   LAW   AS   TO 

ing  goes,  is  the  case  of  Mogul  Steamship  Company  v. 
McGregor ^{a)  wherein  the  law  as  to  contracts  in  restraint 
of  trade  had  a  more  thorough  discussion  than  in  any- 
other  which  has  come  within  my  knowledge. 

The  action  was  brought  against  the  combining  parties 
as  defendants,  by  the  Mogul  Steamship  Company,  the 
owner  of  a  line  of  steamships  which  had  been  driven  out 
of  a  contested  held  by  the  combination,  to  enjoin  the  fur- 
ther operation  of  the  combination  to  the  injury  of  the 
plaintiff.  The  cause  came  on  for  hearing  in  the  first  in. 
stance  before  Lord  Chief  Justice  Coleridge,  on  a  motion 
for  an  injunction.  The  injunction  was  refused,  after  elabo- 
rate argument  by  the  leaders  of  the  English  bar,  the  pres- 
ent Lord  Chief  Justice  Russell  being  leading  counsel  for 
the  defense,  Sir  Henry  James  being  the  leading  counsel 
for  the  complainant.  Lord  Coleridge's  judgment  was 
affirmed  in  the  Court  of  Appeal,  and  afterward  in  the 
House  of  Lords.  In  the  Court  of  Appeal  the  case  was 
heard  before  Lord  Esher,  Master  of  the  Rolls,  with 
Judges  Bowen  and  Fry,  each  of  whom  delivered  an  opin- 
ion. In  the  House  of  l^ords  opinions  were  delivered  by 
Lord  Halsbury,  Lord  Watson,  Lord  Bramwell,  Lord 
Morris,  Lord  Field,  and  Lord  Hannen ;  and  there  was  a 
memorandum  of  concurrence  by  Lord  Macnaghten.  The 
Master  of  the  Rolls  alone  dissented. 

In  all  there  were  ten  opinions,  by  the  first  jurists  in 
England.  It  is  seldom  that  any  case  has  received 
a  consideration  so  exhaustive.  The  principles  and  au- 
thorities of  the  English  law  bearing  on  the  case  were 
thoroughly  examined,  and  carefully  stated. 

The  point  decided  was  the  legality,  under  the  English 
law,  of  a  combination  of  shipowners,  formed  for  the 
avowed  purpose  of  controlling  prices,  and  preventing 
competition— of  preventing  all  competition  between  the 
parties  combining,  and  destroying  all  competition  by 
outsiders.     It  was,  too,  the  case  of  a  combination  of  com- 

(a)  Law  Rep.  21  Q.  B.  Div.  544,  23  Q.  B.  Div.  598,  App.  Cas.  1892,  25. 


PRIVATE   EMPLOYMENTS.  51 

mon  carriers,  for  the  avowed  purpose  of  absorbing,  and 
controlling,  the  entire  transportation  of  tea  from  Canton, 
and  all  the  ports  on  the  Hankow  River,  in  China.  The 
means  to  be  nsed  to  accomplish  that  purpose  included  the 
fixing  of  rates  by  one  common  authority  for  all  the  com- 
bining owners,  the  boycotting  of  all  outside  comj^etitors, 
the  refusal  to  do  business  with  parties  who  did  business 
with  any  outside  competitors,  and  the  putting  down  of 
freights  to  any  figure  that  might  be  necessary  to  drive 
away  those  competitors,  with  the  intent  to  subsequently 
restore  rates  to  a  profitable  figure  after  the  suppression 
of  the  outside  competition. 

A  few  extracts  from  the  opinions  are  here  selected,  in 
order  to  give  an  authoritative  statement  of  the  facts  and 
the  decision  of  the  court. 

The  opinion  of  Lord  Coleridge,  C.  J.,  was  in  part : 

"  The  plaintiffs  are  a  company  of  shipowners  trading,  or  desirous 
of  trading,  between  Australia  and  this  country,  taking  China  by  the 
way  ;  and  desirous  in  particular  of  sharing  in  the  transport  of  what 
has  been  called  the  '  tea  harvest,'  the  time  of  which  is  in  the  late 
spring  and  early  summer  months,  and  the  places  for  loading  which, 
as  far  as  this  case  is  concerned,  are  Shanghai  at  the  moulh  of  the 
Yangtze-kiang  and  Hankow,  a  place  about  600  miles  up  the  stream 
of  that  great  river.  The  defendants  are  a  number  of  great  ship- 
owners, companies,  and  private  partnerships,  trading  for  the  most 
part  from  this  country  to  China  and  from  China  to  this  country 
direct,  and  who,  being  desirous  to  keep  this  very  valuable  trade  in 
their  own  hands,  and  to  prevent,  if  they  can,  the  lowering  of  freights 
(the  ruinous  lowering  as  they  contend),  which  must  follow,  as  they 
say,  from  absolutely  unrestricted  competition,  entered  into  what 
they  call  a  conference  for  the  purpose  of  working  the  homeward 
trade,  by  offering  a  rebate  of  5  per  cent,  upon  all  freights  paid  by 
the  shippers  to  the  conference  vessels,  such  rebate  not  to  be  paid  to 
any  shipper  who  shipped  any  tea  at  Shanghai  or  Hankow  (the  rebate 
was  not  confined  to  these  ports,  but  I  think  that  an  immaterial  cir- 
cumstance) in  any  vessels  but  those  belonging  to  the  conference. 
*****  *  * 

"  The  complaint,  then,  is  this,  that  the  defendants  unlawfully 
combined  or  conspired  to  prevent  the  plaintiffs  from  carrying  on 


52  ENGLISH   LAW   AS   TO 

their  trade,  that  they  did  prevent  them  by  the  use  of  unlawful  means 
in  furtherance  of  such  unlawful  combination  or  conspiracy,  and  that 
from  such  unlawful  combination  or  conspiracy  therefore  damage  has 
resulted  to  the  plaintiffs. 

"  The  defendants  answer  that  neither  was  their  combination  un- 
lawful in  itself,  nor  were  any  unlawful  means  used  in  furtherance  of 
it  ;  but  that  the  damage,  if  any,  to  the  plaintiffs  was  the  necessary 
and  inevitable  result  of  the  defendants  carrying  on  their  lawful  trade 
in  a  lawful  manner. 

"  These  are  the  contentions  on  the  two  sides.  Is  there  anything 
in  the  law  applicable  to  this  subject  in  which  they  are  agreed  ?  In 
the  statement  of  the  law,  as  might  be  expected  from  the  counsel 
who  argued  the  case,  there  was  often  a  close  apparent  agreement  ; 
but  when  it  came  to  the  application  of  it,  the  same  words  were  evi- 
dently not  always  used  on  both  sides  in  the  same  sense.  I  have 
carefully  read  over  again  and  considered  the  arguments,  and  it 
seems  to  me  it  will  be  better  that  I  should  endeavour  to  state  what 
I  conceive  to  be  the  law  upon  the  matter  in  dispute,  and  then  apply 
it  to  the  facts  before  me,  which,  as  most  of  them  depended  upon 
written  documents,  can  hardly  be  said  to  have  been  much  disputed. 

"  It  cannot  be,  nor  indeed  was  it,  denied  that  in  order  to  found 
this  action  there  must  be  an  element  of  unlawfulness  in  the  com- 
bination on  which  it  is  founded,  and  that  this  element  of  unlawful- 
ness must  exist  alike  whether  the  combination  is  the  subject  of  an  in- 
dictment or  the  subject  of  an  action.  But  in  an  indictment  it  suffices 
if  the  combination  exists,  and  is  unlawful,  because  it  is  the  com- 
bination itself  which  is  mischievous,  and  which  gives  the  public  an 
interest  to  interfere  by  indictment.  Nothing  need  be  actually  done 
in  furtherance  of  it.  In  the  Bridgewater  Case(l),  referred  to  at  the 
bar,  and  in  which  I  was  counsel,  nothing  was  done  in  fact  ;  yet  a 
gentleman  was  convicted  because  he  had  entered  into  an  unlawful 
combination  from  which  almost  on  the  spot  he  withdrew,  and  with- 
drew altogether.  No  one  was  harmed,  but  the  public  offence  was 
complete.  This  is  in  accordance  with  the  express  words  of  Bayley, 
J.,  in  Rex  v.  De  £erenger.(2)  It  is  otherwise  in  a  civil  action  :  it 
is  the  damage  which  results  from  the  unlawful  combination  itself 
with  which  the  civil  action  is  concerned.  It  is  not  every  combina- 
tion which  is  unlawful,  and  if  the  combination   is  lawful,  that  is  to 

(1)  Unreported.  (3)  3  M.  &  S.  67,  at  p.  76. 


PRIVATE  EMPLOYMENTS.  53 

say,  is  for  a  lawful  end  pursued  by  lawful  means,  or  being  unlawful 
there  is  no  damage  from  it  to  the  plaintiff,  the  action  will  not  lie. 
In  these  last  sentences  damage  means  legal  injury  ;  mere  loss  or  dis- 
advantage will  not  sustain  the  action. 

"  Once  more,  to  state  the  proposition  somewhat  differently  with  a 
view  to  some  of  the  arguments  addressed  to  me,  the  law  may  be  put 
thus.  If  the  combination  is  unlawful,  then  the  parties  to  it  commit 
a  misdemeanour,  and  are  offenders  against  the  State  ;  and  if,  as  the 
result  of  such  unlawful  combination  and  misdemeanour,  a  private 
person  receives  a  private  injury,  that  gives  such  person  a  right  of 
private  action, 

"  It  is,  therefore,  no  doubt  necessary  to  consider  the  object  of 
the  combination  as  well  as  the  means  employed  to  effect  the  object, 
in  order  to  determine  the  legality  or  illegality  of  the  combination. 
And  in  this  case  it  is  clear  that  if  the  object  were  unlawful,  or  if  the 
object  were  lawful,  but  the  means  employed  to  effect  it  were  unlaw- 
ful, and  if  there  were  a  combination  either  to  effect  the  unlavful 
object  or  to  use  the  unlawful  means,  then  the  combination  was  unlaw- 
ful, then  those  who  formed  it  were  misdemeanants,  and  a  person 
injured  by  their  misdemeanour  has  an  action  in  respect  of  his  injury. 
4e  4c  *  *  «  *  * 

"  It  will  appear  from  the  statement  which  I  have  given  of  what  I 
believe  to  be  the  law,  that  I  cannot  assent  without  some  qualification 
to  the  propositions  which  were  pressed  upon  me  by  the  learned  coun- 
sel for  the  contending  parties  in  this  case.  For  the  same  reason  I 
do  not  propose  to  enter  into  a  detailed  examination  of  the  many 
cases  which  were  cited  in  argument.  I  believe  that,  fairly  consid- 
ered and  rightly  looked  at,  every  case,  includmg  the  much  canvassed 
one  of  Rex  v.  Turner, {\)  will  be  found  to  be  consistent  with  the 
principles  I  have  stated,  although  there  are  isolated  dicta  of  very 
great  judges,  probably  in  their  actual  terms — if  the  terms  are  rightly 
reported — going  beyond  the  law,  certainly  quite  at  variance  with 
each  other.  On  one  side  are  extreme  cases,  such  as  Keble  v.  Hick- 
ringill{2),  in  which  at  first  Lord  Ilolt  doubted,  but  finally  gave 
judgment  for  the  plaintiff,  and  Reg  v.  J)ruitt[3),  in  which,  unless 
he  is  misreported,  Bramwell,  B.,  said  he  thought  a  combination  to 
treat  a  man  with  '  black  looks  '   was  an  indictable  misdemeanour 

7 

(1)  13  East,  228.  (2)  11  Mod.  74,  131.  (3)  10  Cox,  C.  C.  592. 


54  ENGLISH   LAW   AS   TO 

(a  decision,  if  it  be  one,  which  might  assuredly  land  us  in  unex- 
pected and  singular  results)  ;  and  the  very  broad  dictum  of  Pratt, 
C.  J.,  in  Rex  v.  Journeyman  Tailors  of  Cambridge{\)^  that  '  a  con- 
spiracy of  any  kind  is  illegal,  though  the  matter  they  conspired 
about  might  have  been  quite  lawful  for  them  to  do.'  These  are 
perhaps  as  extreme  as  can  be  found  on  one  side  ;  on  the  other  is  the 
questioned  and  possibly  overruled  case  of  Hex  v.  Turner(2^,  de- 
cided by  Lord  Ellen  borough,  C.  J.,  and  Grose,  Le  Blanc  and  Bay- 
ley,  JJ.  The  view  which  Lord  Ellenborough  took  of  the  facts  of 
that  case  appears  rather  from  his  interlocutory  observation  at  p.  230 
than  from  his  judgment  on  the  page  following.  It  is  difficult  not 
to  acquiesce  in  the  good  sense  of  Lord  EUenborough's  observations, 
and  speaking,  as  I  wish,  and,  indeed,  ought  to  speak,  with  grateful 
respect  of  Lord  Campbell,  I  do  not  feel  so  sure  that  Lord  Ellen- 
borough  was  wrong  simply  because  Lord  Campbell  in  Heg  v.  Mow- 
la7ids{3)  says  he  has  no  doubt  he  was  so.  Be  that  as  it  may,  and 
if  Lord  Ellenborough  and  the  Court  did  wrongly  apply  the  principles 
of  law  in  Bex  v.  Turner{2),  the  principles  are  clearly  and  forcibly 
stated  in  accordance  with  what  I  have  endeavoured  to  express  by 
Lord  Ellenborough  himself.  The  case  of  Rex  v.  Eccles{A),  before 
Lord  Mansfield,  C.  J.,  Willes  and  Buller,  JJ.,  turned  upon  plead- 
ing ;  the  motion  was  in  arrest  of  judgment  ;  the  decision  was  that 
after  verdict  the  indictment  was  good  ;  and  the  case  itself  is  ex- 
pressly commented  on,  explained  and  distinguished  by  Lord  Ellen- 
borough in  Rex  v.  Turner.  {2) 

''  There  were  a  number  of  cases,  of  which  Winsmore  v.  Green- 
hank{p),  Lumley  v.  Gye{<d),  and  Bowen  v.  Hall{1),  were  examples, 
in  which  the  question  of  conspiracy  did  not  arise  ;  but  they  were 
cited  to  shew  what  cases  of  interference  with  what  sort  of  con- 
tracts had  been  held  actionable  by  the  courts  at  the  suit  of  one 
individual  against  another.  Now  all  these  cases  bind  me  sitting 
here,  and  1  neither  question  nor  desire  to  evade  their  authority. 
But  they  do  not  help  me  much.  I  do  not  doubt  the  acts  done  by 
the  defendants  here,  if  done  wrongfully  and  maliciously,  or  if  done 
in  furtherance  of  a  wrongful  and  malicious  combination,  would  be 


(1)  8  Mod.  11.  (5)  Willes.  577. 

(2)  13  East,  228.  (6)  2  E.  &  B.  216. 

(3)  17  Q.  B.  671,  at  p.  686.  (7)  6  Q.  B.  D.  333. 

(4)  1  Leach,  C.  C.  274. 


PRIVATE   EMPLOYMENTS.  55 

ground  for  an  action  on  the  case  at  the  suit  of  one  who  suffered  in- 
jury from  them.  The  question  comes  at  last  to  this,  what  was  the 
character  of  these  acts,  and  what  was  the  motive  of  the  defendants 
in  doing  them  ?  Tlie  defendants  are  traders  with  enormous  sums  of 
money  embarked  in  their  adventures,  and  naturally  and  allowably 
desirous  to  reap  a  profit  from  their  trade.  They  have  a  right  to 
push  their  lawful  trade  by  all  lawful  means.  They  have  a  right  to 
endeavour  by  lawful  means  to  keep  their  trade  in  their  own  hands 
and  by  the  same  means  to  exclude  others  from  its  benefits,  if  they 
can.  Amongst  lawful  means  is  certainly  included  the  inducing  by 
profitable  offers  customers  to  deal  with  them  rather  than  with  their 
rivals.  It  follows  that  they  may,  if  they  think  fit,  endeavour  to 
induce  customers  to  deal  with  them  exclusively  by  giving  notice  that 
only  to  exclusive  customers  will  they  give  the  advantage  of  their 
profitable  offers.  I  do  not  think  it  matters  that  the  withdrawal  of 
the  advantages  is  out  of  all  proportion  to  the  injury  inflicted  on 
those  who  withdraw  them  by  the  customers,  who  decline  to  deal  ex. 
clusively  with  them,  dealing  with  other  traders.  It  is  a  bargain 
which  persons  in  Ihe  position  of  the  defendants  here  had  a  right  to 
make,  and  those  who  are  parties  to  the  bargain  must  take  it  or  leave 
it  as  a  whole.  Of  coercion,  of  bribing,  I  see  no  evidence  ;  of  in- 
ducing, in  the  sense  in  which  that  word  is  used  in  the  class  of  cases 
to  which  Lumley  v.  Gye(\)  belongs,  I  see  none  either. 

"  One  word  in  passing  only  on  the  contention  that  this  combina- 
tion of  the  defendants  was  zcnlawful  because  it  was  in  restraint  of 
trade.  It  seems  to  me  it  was  no  more  in  restraint  of  trade,  as  that 
phrase  is  used  for  the  purpose  of  avoiding  contracts,  than  if  two 
tailors  in  a  village  agreed  to  give  their  customers  five  per  cent,  off 
their  bills  at  Christmas  on  condition  of  their  customers  dealing  with 
them  and  with  them  only.  Restraint  of  trade,  with  deference,  has 
in  its  legal  sense  nothing  to  do  with  this  question. 

"  But  it  is  said  that  the  motive  of  these  acts  was  to  ruin  the  plain- 
tiffs, and  that  such  a  motive,  it  has  been  held,  will  render  the  com- 
bination itself  wrongful  and  malicious,  and  that  if  damage  has  re- 
sulted to  the  plaintiffs  an  action  will  lie.  I  concede  that  if  the  pre- 
mises are  established  the  conclusion  follows.  It  is  too  late  to  dis- 
pute, if  I  desired  it,  as  I  do  not,  that  a  wrongful  and  malicious  com- 
bination to  ruin   a   man   in   his  trade  may  be  ground  for  such  an 

(1)  3  E.  &  B.  216. 


56  ENGLISH  LAW   AS  TO 

action  as  this.  Was  then  this  combination  such  ?  The  answer  to 
this  question  has  given  me  much  trouble,  and  1  confess  to  the  weak- 
ness of  having;  long  doubted  and  hesitated  before  I  could  make  up 
my  mind.  There  can  be  no  doubt  that  the  defendants  were  deter- 
mined, if  they  could,  to  exclude  the  plaintiffs  from  this  trade. 
Strong  expressions  were  drawn  from  some  of  them  in  cross-examina- 
tion, and  the  telegrams  and  letters  shewed  the  importance  they  at- 
tached to  the  matter,  their  resolute  purpose  to  exclude  the  plaintiffs 
if  they  could,  and  to  do  so  without  any  consideration  for  the  results 
to  the  plaintiffs,  if  they  were  successfully  excluded.  This,  I  think,  is 
made  out,  and  I  think  no  more  is  made  out  than  this.  Ts  this 
enough  ?  It  must  be  remembered  that  all  trade  is  and  must  be  in  a 
sense  selfish  ;  trade  not  being  infinite,  nay,  the  trade  of  a  particular 
place  or  district  being  possibly  very  limited,  what  one  man  gains 
another  loses.  In  the  hand-to-hand  war  of  commerce,  as  in  the 
conflicts  of  public  life,  whether  at  the  bar,  in  Parliament,  in  medi- 
cine, in  engineering  (I  give  examples  only),  men  fight  on  without 
much  thought  of  others,  except  a  desire  to  excel  or  to  defeat  them. 
Very  lofty  minds,  like  Sir  Philip  Sidney  with  his  cup  of  water,  will 
not  stoop  to  take  an  advantage,  if  they  think  another  wants  it  more. 
Our  age,  in  spite  of  high  authority  to  the  contrary,  is  not  without 
its  Sir  Philip  Sidneys  ;  but  these  are  counsels  of  perfection  which 
it  would  be  silly  indeed  to  make  the  measure  of  the  rough  business 
of  the  world  as  pursued  by  ordinary  men  of  business.  The  line  is 
in  words  difficult  to  draw,  but  I  cannot  see  that  these  defendants 
have  in  fact  passed  the  line  which  separates  the  reasonable  and 
legitimate  selfishness  of  traders  from  wrong  and  malice.  In  1884 
they  admitted  the  plaintiffs  to  their  conference  ;  in  1885  they  ex- 
cluded them,  and  they  were  determined  no  doubt,  if  they  could,  to 
make  the  exclusion  complete  and  effective,  not  from  any  personal 
malice  or  ill  will  to  the  plaintiffs  as  individuals,  but  because  they 
were  determined,  if  they  could,  to  keep  the  trade  to  themselves  ; 
and  if  they  permitted  persons  in  the  position  of  the  plaintiffs  to  come 
in  and  share  it  they  thought,  and  honestly  and,  as  it  turns  out, 
correctly  thought,  that  for  a  time  at  least  there  would  be  an  end  of 
their  gains. 

"  The  plaintiffs'  conduct  cannot  affect  their  right  of  action,  if 
they  have  it  ;  but  it  is  impossible  not  to  observe  that  they  were  as 
reckless  of  consequences  in  regard  to  the  defendants  as  they  accuse 
the  defendants  of  being  in  regard  to  themselves  ;  they  were  as  de- 


PRIVATE   EMPLOYMENTS.  57 

terniined  to  break  in  as  the  defendants  were  determined  to  shut  out  ; 
and  they  made  their  threats  of  smashing  freights  and  injuring  the 
defendants  a  mode  of  rather  forcible  suasion  to  the  defendants  to 
let  them  into  the  conference.  If  they  have  their  right  of  action, 
why  they  have  it  ;  if  they  have  it  not,  their  own  conduct  disentitles 
them  to  much  sympathy. 

"  On  the  whole  I  come  to  the  conclusion  that  the  combination 
was  not  wrongful  and  malicious,  and  that  the  defendants  were  tiot 
puilty  of  a  misdemeanour.  T  think  that  the  acts  done  in  pursuance 
of  the  combination  were  not  unlawful,  not  wrongful,  not  malicious  ; 
and  that  therefore  the  defendants  are  entitled  to  my  judgment." 

Opinion  of  Lord  Bowen,  Law  Rep.  23  Q.  B.  Div.  613  : 

**  The  English  law,  which  in  its  earlier  stages  began  with  but  an 
imperfect  line  of  demarcation  between  torts  and  breaches  of  con- 
tract, presents  us  with  no  scientific  analysis  of  the  degree  to  which 
the  intent  to  harm,  or,  in  the  language  of  the  civil  law,  the  animus 
vicino  nocendi,  may  enter  into  or  affect  the  conception  of  a  personal 
wrong  ;  see  Chasemore  v.  Richards. {\)  All  personal  wrong  means 
the  infringement  of  some  personal  right.  '  It  is  essential  to  an  action 
in  tort,'  say  the  Privy  Council  in  Rogers  v.  Rajendro  Dutt,{2)  '  that 
the  act  complained  of  should  under  the  circumstances  be  legally 
wrongful  as  regards  the  party  complaining  ;  that  is,  it  must  preju- 
dicially affect  him  in  some  legal  right  ;  merely  that  it  will,  however 
directly,  do  a  man  harm  in  his  interests,  is  not  enough.'  What, 
then,  were  the  rights  of  the  plaintiffs  as  traders  as  against  the  de- 
fendants ?  The  plaintiffs  had  a  right  to  be  protected  against  certain 
kind  of  conduct  ;  and  we  have  to  consider  what  conduct  would  pass 
this  legal  line  or  boundary.  Now,  intentionally  to  do  that  which  is 
calculated  in  the  ordinary  course  of  events  to  damage,  and  which 
does,  in  fact,  damage  another  in  that  other  person's  property  or 
trade,  is  actionable  if  done  without  just  cause  or  excuse.  Such  in- 
tentional  action  when  done  without  just  cause  or  excuse  is  what  the 
law  calls  a  malicious  wrong  (see  Bromage  v.  Prosser  ;\?>^  Capital 
and  Counties  Bank  v.  Henty,  per  Lord  Blackburn  [4]).  The  acts  of 
the  defendants  which  are  complained  of  here  were  intentional,  and 
were  also  calculated,  no  doubt,  to  do  the  plaintiffs  damage  in  their 

(1)  7  H.  L.  C.  349.  at  p.  388.  (3)  4  B.  &  C.  247. 

(2)  13  Moore,  P.  C.  309.  (4)  7  App   Cas.  741,  at  p.  773. 


58  ENGLISH   LAW   AS   TO 

trade.  But  in  order  to  see  whether  they  were  wrongful  we  have 
still  to  discuss  the  question  whether  they  were  done  without  any  just 
cause  or  excuse.  Such  just  cause  or  excuse  the  defendants  on  their 
side  assert  to  be  found  in  their  own  positive  right  (subject  to  cer- 
tain limitations)  to  carry  on  their  own  trade  freely  in  the  mode  and 
manner  that  best  suits  them,  and  which  they  think  best  calculated 
to  secure  their  own  advantage. 

"  What,  then,  are  the  limitations  which  the  law  imposes  on  a 
trader  in  the  conduct  of  his  business  as  between  himself  and  other 
traders  ?  There  seem  to  be  no  burdens  or  restrictions  in  law  upon 
a  trader  which  arise  merely  from  the  fact  that  he  is  a  trader,  and 
which  are  not  equally  laid  on  all  other  subjects  of  the  Crown.  His 
right  to  trade  freely  is  a  right  which  the  law  recognises  and  encour- 
ages, but  it  is  one  which  places  him  at  no  special  disadvantage  as 
compared  with  others.  No  man,  whether  trader  or  not,  can,  how- 
ever, justify  damaging  another  in  his  commercial  business  hy  fraud 
or  misrepresentation.  Intimidation,  obstruction,  and  molestation  are 
forbidden  ;  so  is  the  intentional  procurement  of  a  violation  of  indi- 
vidual rights,  contractual  or  other,  assuming  always  that  there  is  no 
just  cause  for  it.  The  intentional  driving  away  of  customers  by 
shew  of  violence:  Tarleton  v.  M' Gawley  ;{l)  the  obstruction  of 
actors  on  the  stage  by  preconcerted  hissing  :  Clifford  v.  Brandon  ;(2) 
Gregory  v.  Brunswick  ; (2)  the  disturbance  of  wild  fowl  in  decoys  by 
the  firing  of  guns  :  Carrington  v.  Taylor,  {A)  and  Keeble  v.  Hicker- 
ingill  ;(5)  the  impending  or  threatening  servants  or  workmen  :  Gar- 
ret \.  Taylor  ; (6)  the  inducing  persons  under  personal  contracts  to 
break  their  contracts  :  Bowen  v.  Hall  ;{1)  Lumley  v.  Gye  ;{8)  all 
are  instances  of  such  forbidden  acts.  But  the  defendants  have  been 
guilty  of  none  of  these  acts.  They  have  done  nothing  more  against 
the  plaintiffs  than  pursue  to  the  bitter  end  a  war  of  competition 
waged  in  the  interest  of  their  own  trade.  To  the  argument  that  a 
competition  so  pursued  ceases  to  have  a  just  cause  or  excuse  when 
there  is  ill  will  or  a  personal  intention  to  harm,  it  is  sufficient  to 
reply  (as  I  have  already  pointed  out)  that  there  was  here  no  per- 
sonal intention  to  do  any  other  or  greater  harm  to  the  plaintiffs  than 


(1)  Peak.  N.  P.  C.  270.  (5)  11  East,  574,  n. 

(2)  2  Camp.  358.  (6)  Cro.  Jac.  567. 

(3)  6  Man.  &  G.  205.  (7)  6  Q.  B.  D.  333. 

(4)  11  East,  571.  (8)  2  E.  &  B.  216. 


PRIVATE   EMPLOYMENTS.  59 

such  as  was  necessarily  involved  in  tlie  desire  to  attract  to  the  de- 
fendants' ships  the  entire  tea  freights  of  the  ports,  a  portion  of 
which  would  otherwise  have  fallen  to  the  plaintiffs'  share.  I  can 
find  no  authority  for  the  doctrine  that  such  a  commercial  motive 
deprives  of  '  just  cause  or  excuse  '  acts  done  in  the  course  of  tiade 
which  would  hut  for  such  a  motive  be  justifiable.  So  to  hold  would 
be  to  convert  into  an  illegal  motive  the  instinct  of  self-advancement 
and  self-protection,  which  is  the  very  incentive  to  all  trade.  To  say 
that  a  man  is  to  trade  freely,  hut  that  he  is  to  stop  short  at  any  act 
which  is  calculated  to  harm  other  tradesmen,  and  which  is  designed  to 
attract  business  to  his  own  shop,  would  be  a  strange  and  impossible 
counsel  of  perfection. 

"  It  is  urged,  however,  on  the  part  of  the  plaintiffs,  that  even  if 
the  acts  complained,  of  tvould  not  be  wrongful  had  they  been  co7nmitted 
by  a  single  individual,  they  become  actionable  when  they  are  the  result 
of  concerted  action  among  several.  In  other  words,  the  plaintiffs,  it 
is  contended,  liave  been  injured  by  an  illegal  conspiracy.  Of  the 
general  proposition,  that  certain  kinds  of  conduct  not  criminal  in  any 
one  individual  may  become  criminal  if  done  by  combination  among 
several,  there  can  be  no  doubt.  The  distinction  is  based  on  sound 
reason,  for  a  combination  may  make  oppressive  or  dangerous  that 
which  if  it  proceeded  only  from  a  single  person  would  be  otherwise, 
and  the  very  fact  of  the  combination  may  shew  that  the  object  is 
simply  to  do  liarm,  and  not  to  exercise  one's  own  just  rights.  In 
the  application  of  this  undoubted  principle  it  is  necessary  to  be  very 
careful  not  to  press  the  doctrine  of  illegal  conspiracy  beyond  that 
which  is  necessary  for  the  protection  of  individuals  or  of  the  public  ; 
and  it  may  be  observed  in  passing  that  as  a  rule  it  is  the  damage 
wrongfully  done,  and  not  the  conspiracy,  that  is  the  gist  of  actions 
on  the  case  for  conspiracy  :  see  Skinner  v.  Gunton  ;{\)  Hutchins  v. 
Hutchins.{2)  But  what  is  the  definition  of  an  illegal  combination  ? 
It  is  an  agreement  by  one  or  more  to  do  an  unlawful  act,  or  to  do  a 
lawful  act  by  unlawful  means  :  0' Connell  v.  The  Queen  ;[S)  Reg  v. 
Parnell  ;{-i)  and  the  question  to  be  solved  is  whether  there  has  been 

(1)  1  Wms.  Saund.  229. 

(2)  7  Hill's  New  York  Cases,  104  ;  Bigelow's  Leading  Cases  on  Torts, 
207. 

(3)  11  CI.  &  F.  155. 

(4)  14  Cox,  Criminal  Cases,  508. 


60  ENGLISH   LAW  AS  TO 

any  such  agreement  here.  Have  the  defendants  combined  to  do  an 
unlawful  act?  Have  they  combined  to  do  a  lawful  act  by  unlawful 
means?  A  moment's  consideration  will  be  sufficient  to  shew  that 
this  new  inquiry  only  drives  us  back  to  the  circle  of  definitions  and 
legal  propositions  which  I  have  already  traversed  in  the  previous 
part  of  this  judgment.  The  unlawful  act  agreed  to,  if  any,  between 
the  defendants  must  have  been  the  intentional  doing  of  some  act  to 
the  detriment  of  the  plaintiffs'  business  without  just  cause  or  ex- 
cuse. Whether  there  was  any  such  justification  or  excuse  for  the 
defendants  is  the  old  question  over  again,  which,  so  far  as  regards 
an  individual  trader,  has  been  already  solved.  The  only  differentia 
that  can  exist  must  arise,  if  at  all,  out  of  the  fact  that  the  acts  done 
are  the  joint  acts  of  several  capitalists,  and  not  of  one  capitalist 
only.  The  next  point  is  whether  the  means  adopted  were  unlawful. 
The  means  adopted  were  competition  carried  to  a  bitter  end. 
Whether  such  means  were  unlawful  is  in  like  manner  nothing  but 
the  old  discussion  which  I  have  gone  through,  and  which  is  now  re- 
vived under  a  second  head  of  inquiry,  except  so  far  as  a  combination 
of  capitalists  differentiates  the  case  of  acts  jointly  done  by  them 
from  similar  acts  done  by  a  single  man  of  capital.  But  I  find  it 
impossible  myself  to  acquiesce  in  the  view  that  the  English  law  places 
any  such  restriction  on  the  combination  of  capital  as  would  be  involved 
in  the  recognition  of  such  a  distinction.  If  so,  one  rich  capitalist 
may  innocently  carry  competition  to  a  length  which  would  become  un- 
lawful in  the  case  of  a  syndicate  with  a  joint  capital  no  larger  than  his 
own,  and  one  individual  merchant  may  lawfully  do  that  ivhich  a  firm 
or  a  partnership  may  not.  What  limits,  on  such  a  theory,  would  be 
imposed  by  law  on  the  competitive  action  of  a  joint-stock  company 
limited,  is  a  problem  which  might  well  puzzle  a  casuist.  The  truth 
is,  that  the  combination  of  capital  for  purposes  of  trade  and  com- 
p)etition  is  a  very  different  thing  from  such  a  combination  of  several 
persons  against  one,  with  a  view  to  harm  him,  as  falls  under  the  head 
of  an  indictable  conspiracy.  There  is  no  just  cause  or  excuse  in  the 
latter  class  of  cases.  There  is  such  a  just  cause  or  excuse  in  the 
former.  There  are  cases  in  which  the  very  fact  of  a  combination 
is  evidence  of  a  design  to  do  that  which  is  hurtful  without  just  cause 
— is  evidence  — to  use  a  technical  expression — of  malice.  But  it  is 
perfectly  legitimate,  as  it  seems  to  me,  to  combine  capital  for  all  the 
mere  purposes  of  trade  for  which  capital  may,  apart  from  combina- 
tion, be  legitimately  used  in  trade.      To  limit  combinations  of  capital. 


PRIVATE  EMPLOYMENTS.  61 

when  used  for  purposes  of  competition,  in  the  manner  proposed  by  the 
argument  of  the  jylaintiffs,  would,  in  the  present  day,  be  impossible — 
would  he  only  another  method  of  attempting  to  set  boundaries  to  the 
tides.  Legal  puzzles  which  might  well  distract  a  theorist  may  easily 
be  conceived  of  imaginary  conflicts  between  the  selfishness  of  a 
group  of  individuals  and  the  obvious  wellbeing  of  other  members  of 
the  community.  Would  it  be  an  indictable  conspiracy  to  agree  to 
drink  up  all  the  water  from  a  common  spring  in  a  time  of  drought  ; 
to  buy  up  by  preconcerted  action  all  the  provisions  in  a  market  or 
district  in  times  of  scarcity  :  see  Hex  v.  Waddington  ;(1)  to  com- 
bine to  purchase  all  the  shares  of  a  company  against  a  coming  set- 
tling-day ;  or  to  agree  to  give  away  articles  of  trade  gratis  in  order 
to  withdraw  custom  from  a  trader  ?  May  two  itinerant  match- ven- 
dors combine  to  sell  matches  below  their  value  in  order  by  com- 
petition to  drive  a  third  match-vendor  from  the  street  ?  In  cases 
like  these,  where  the  elements  of  intimidation,  molestation,  or  the 
other  kinds  of  illegality  to  which  I  have  alluded  are  not  present,  the 
question  must  be  decided  by  the  application  of  the  test  I  have  indi- 
cated. Assume  that  what  is  done  is  intentional,  and  that  it  is  calcu- 
lated to  do  harm  to  others.  Then  comes  the  question,  Was  it  done 
with  or  without  '  just  cause  or  excuse  '  ?  If  it  was  bona  fide  done 
in  the  use  of  a  man's  own  property,  in  the  exercise  of  a  man's  own 
trade,  such  legal  justification  would,  I  think,  exist  not  the  less  because 
what  was  done  might  seem  to  olhers  to  be  selfish  or  unreasonable  ; 
see  the  summing-up  of  Erie,  J.,  and  the  judgment  of  the  Queen's 
Bench  in  Meg.  v.  Rowlands.  {^)  But  such  legal  justification  would 
not  exist  when  the  act  was  merely  done  with  the  intention  of  causing 
temporal  harm,  without  reference  to  one's  own  lawful  gain,  or  the 
lawful  enjoyment  of  one's  own  rights.  The  good  sense  of  the 
tribunal  which  had  to  decide  would  have  to  analyze  the  circum- 
stances and  to  discover  on  which  side  of  the  line  each  case  fell. 
But  if  the  real  object  were  to  enjoy  tvhat  loas  one's  oton,  or  to  acquire 
for  one's  self  some  advantage  in  one's  property  or  trade,  and  what 
was  done  was  done  honestly,  peaceably,  and  without  any  of  the  illegal 
acts  above  referred  to,  it  could  not,  in  my  opinion,  properly  be  said 
that  it  was  done  without  just  cause  or  excuse.  One  may  with  ad- 
vantage borrow  for  the  benefit  of  traders  what  was  said  by  Erie,  J. , 
in  Reg.  v.  Rowlands,  {'S),  of  workmen  and  of  masters:  '  The  intention 

(1)  1  East,  143.  (2)  17  Q.  B.  671.  (3)  17  Q.  B.  671,  at  p.  687,  n. 


62  ETq'GLISH  LAW   AS   TO 

of  the  law  is  at  present  to  allow  eillier  of  them  \o  follow  the  dictates 
of  their  oivn  will,  with  respect  to  their  own  actions,  and  their  own 
property/  ;  and  either,  I  believe,  has  a  right  to  study  to  promote  his 
own  advantage,  or  to  combine  with  others  to  promote  their  mutual 
advantage. ' 

*'  Lastly,  we  are  asked  to  hold  the  defendants'  conference  or  asso- 
ciation illegal,  as  being  in  restraint  of  trade.  The  term  '  illegal  ' 
here  is  a  misleading  one.  Contracts,  as  they  are  called,  in  restraint 
of  trade,  are  not,  in  my  opinion,  illegal  in  any  sense,  except  that  the 
lata  will  not  enforce  them.  It  does  not  prohibit  the  making  of  such 
contracts  ;  it  merely  declines,  after  they  have  been  made,  to  recognise 
their  validity.  The  law  considers  the  disadvantage  so  imposed  upon 
the  contract  a  sufficient  shelter  to  the  public.  The  language  of 
Crompton,  J.,  in  Hilton  v.  Eckersley(\),  is,  I  think,  not  to  be  sup- 
ported. No  action  at  common  law  will  lie  or  ever  has  lain  against 
any  individual  or  individuals  for  entering  into  a  contract  merely  be- 
cause it  is  in  restraint  of  trade.  Lord  Eldon's  equity  decision  in 
Cousins  V.  Smith(2)  is  not  very  intelligible,  even  if  it  be  not  open  to 
the  somewhat  personal  criticism  passed  on  it  by  Lord  Campbell  in 
his  '  Lives  of  the  Chancellors.'  If  indeed  it  could  be  plainly  proved 
that  the  mere  formation  of  '  conferences,'  '  trusts,'  or  '  associations  ' 
such  as  these  were  always  necessarily  injurious  to  the  public — a  view 
which  involves,  perhaps,  the  disputable  assumption  that,  in  a  country 
of  free  trade,  and  one  which  is  not  under  the  iron  regime  of  statutory 
monopolies,  such  confederations  can  ever  be  really  successful — and 
if  the  evil  of  them  were  not  sufficiently  dealt  with  by  the  common 
law  rule,  which  held  such  agreements  to  be  void  as  distinct  from 
holding  them  to  be  criminal,  there  might  be  some  reason  for  thinking 
that  the  common  law  ought  to  discover  within  its  arsenal  of  sound 
common-sense  principles  some  further  remedy  commensurate  with 
the  mischief.  Neither  of  these  assumptions  are,  to  my  mind,  at  all 
evident,  nor  is  it  the  province  of  judges  to  mould  and  stretch  the 
law  of  conspiracy  in  order  to  keep  pace  with  the  calculations  of 
political  economy.  If  peaceable  and  honest  combinations  of  capital 
for  purposes  of  trade  competition  are  to  be  struck  at,  it  must,  I 
think,  be  by  legislation,  for  I  do  not  see  that  they  are  under  the  ban 
of  the  common  laio. 

"  In  the  result,  I  agree  with  Lord  Coleridge,  C.  J.,  and  differ, 

(1)  6  E.  &  B.  47.  (2)  13  Ves.  542. 


PRIVATE   EMPLOYMENTS.  63 

with  regret,  from  the  Master  of  the  Rolls.  The  substance  of  my 
view  is  this,  that  competition,  however  severe  and  egotistical,  if  un- 
attended by  circumstances  of  dishonesty,  intimidation,  molestation,  or 
such  illegalities  as  I  have  above  referred  to,  gives  rise  to  no  cause  of 
action  at  common  law.  I  myself  should  deem  it  to  be  a  misfortune 
if  we  were  to  attempt  to  prescribe  to  the  business  world  how  honest 
and  peaceabhe  trade  was  to  be  carried  on  in  a  case  where  no  such 
illegal  elements  as  I  have  mentioned  exist,  or  were  to  adopt  some 
standard  of  judicial  '  reasonableness,'  or  of  '  normal  '  prices,  or  '  fair 
freights,'  to  which  commercial  adventurers,  otherwise  innocent,  were 
bound  to  conform." 

Opinion  of  Lord  Fry,  Law  Rep.,  23  Q.  B.  Div.  624. 

"  The  plaintiffs  allege  that  the  conference  was  an  unlawful  con- 
spiracy ;  that  the  agreement  then  entered  into  was  carried  into  exe- 
cution by  the  sending  up  of  the  three  ships  ex{)ressly  to  compete 
with  the  plaintiffs'  vessels,  by  the  circular  and  by  the  reduction  of 
freights  ;  that  these  acts  were  wrongful,  and  have  caused  damage  to 
them,  and  consequently  were  actionable. 

"  I  cannot  doubt  that  whenever  persons  enter  into  an  agreement 
which  constitutes  at  law  an  indictable  conspiracy,  and  that  agree- 
ment is  carried  into  execution  by  the  conspirators  by  means  of  an 
unlawful  act  or  acts  which  produce  private  injury  to  some  person, 
that  person  has  a  cause  of  action  against  the  conspirators.  Was  the 
agreement  in  the  present  case  an  unlawful  conspiracy  ? 

'*  *  The  crime  of  conspiracy,'  said  Tindal,  C.  J,,  speaking  for  the 
judges  attending  the  House  of  Lords  in  0''ConneWs  case,{\)  *  is 
complete  if  two,  or  more  than  two,  should  agree  to  do  an  illegal 
thing  ;  that  is,  to  effect  something  in  itself  unlawful,  or  to  effect,  by 
unlawful  means,  something  which  in  itself  may  be  indifferent  or  even 
lawful.'  'A  conspiracy,'  said  Willes,  J.,  'consists  in  the  agree- 
ment of  two  or  more  to  do  an  unlawful  act,  or  to  do  a  lawful  act  by- 
unlawful  means. '(2)  In  all  cases,  therefore,  a  conspiracy  is  an  agree- 
ment to  do  an  unlawful  act.  It  is  immaterial  whether  that  act  be 
(a)  the  principal  object  and  end  of  tiie  agreement,  as  an  agreement 
to  kill,  or  (b)  a  subordinate  act  toward  the  principal  object,  as  in  an 
agreement  to  support  a  true  title  by  forged  deeds  or  suborned  wit- 

(1)  11  CI.  &  F.  155,  at  p.  233. 

(2)  Mulcahy  v.  lieg.,  Law  Rep.  3  H.  L.  306,  at  p.  317. 


64:  ENGLISH   LAW   AS   TO 

nesses.  Again,  the  act  may  be  unlawful  (a)  because  it  would  be 
unlawful  in  each  of  the  agreeing  parties,  even  if  he  did  it  alone,  or 
(b)  because  though  lawful  in  one  it  is  unlawful  in  two  or  more. 

"  The  first  inquiry,  then,  which  arises,  is  this  :  Was  the  principal 
object  and  end  of  the  agreement  illegal  ?  I  answer  that  that  object 
and  end  was  the  acquisition  of  gain  by  the  defendants.  That  is 
lawful,  and,  I  suppose,  even  commendable,  according  to  the  law  of 
this  country,  provided  the  means  used  be  lawful.  What,  then,  were 
the  means  intended  to  be  used  I  They  were,  as  I  have  already  said, 
the  exclusion  of  competition  in  the  remoter  future  by  severe  com- 
petition in  the  near  future.      Was  that  lawful  or  unlawful  ? 

*'  It  is  not  necessary  to  consider  whether  competition  directed  by 
one  man  or  by  a  combination  of  men  against  another  man,  if  insti- 
gated and  put  in  motion  from  mere  malice  and  ill  will  towards  him, 
as  a  means  of  doing  him  ill  service,  and  for  no  benefit  to  the  doer, 
would  or  would  not  be  unlawful  or  actionable.  There  is  in  the  pres- 
ent case  no  evidence  of  express  malice  or  of  any  activity  of  the  de- 
fendants against  the  plaintiffs,  except  as  rival  and  competing  ship- 
owners. The  defendants  did  not  aim  at  any  general  injury  of  the 
plaintiffs'  trade,  or  any  reduction  of  them  to  poverty  or  insolvency  ; 
they  only  desired  to  drive  them  away  from  particular  jwrts,  where  the 
defendants  conceived  that  the  plaintiffs'  presence  interfered  with  their 
oiun  gain.  The  damage  to  be  inflicted  on  the  plaintiffs  was  to  be 
strictly  limited  by  the  gain  which  the  defendants  desired  to  win  for 
themselves.  In  the  observations  I  am  about  to  make  I  shall,  there- 
fore, lay  out  of  consideration  this  case  of  competition  used  as  a  mere 
engine  of  malice,  even  where  I  do  not  in  terms  repeat  the  exception. 
I  will  only  add  on  this  part  of  the  case  that  the  charge  of  Erie,  J., 
in  the  case  of  Reg.  v.  Rowlands, {\)  draws  the  same  distinction 
which  I  have  taken  between  combinations  to  promote  the  interests 
of  those  who  combine,  and  combinations  of  which  the  hurt  of  an- 
other is  the  immediate  purpose. 

"  We  have  then  to  inquire  whether  mere  competition,  directed  by 
one  man  against  another,  is  ever  unlawful.  It  was  argued  that  the 
plaintiffs  have  a  legal  right  to  carry  on  their  trade,  and  that  to  de- 
prive them  of  that  right  by  any  means  is  a  wrong.  But  the  right  of 
the  plaintiffs  to  trade  is  not  an  absolute,  but  a  qualified  right — a 
right  conditioned  by  the  like  right  in  the  defendants  and  all  Her 

(1)  17  Q.  B.  671. 


PRIVATE   EMPLOYMENTS.  65 

Majesty's  sahjects,  and  a  riglit  therefore  to  trade  subject  to  com- 
petition. Now,  I  know  no  limits  to  the  right  of  competition  in  tlie 
defendants — I  mean,  no  limits  in  law.  I  am  not  speaking  of  morals 
or  good  manners.  To  draw  a  line  between  fair  and  unfair  competi- 
tion, between  what  is  reasonable  and  unreasonable,  passes  the  power 
of  the  courts.  Competition  exists  when  two  or  more  persons  seek 
to  possess  or  to  enjoy  the  same  tiling  :  it  follows  that  the  success  of 
one  must  be  the  failure  of  another,  and  no  principle  of  law  enables 
us  to  interfere  with  or  to  moderate  that  success  or  that  failure  so 
long  as  it  is  due  to  mere  competition.  I  say  mere  competition,  for 
1  do  not  doubt  that  it  is  unlawful  and  actionable  for  one  man  to 
interfere  with  another's  trade  by  fraud  or  misrepresentation,  or  by 
molesting  his  customers,  or  those  who  would  be  his  customers, 
whether  by  physical  obstruction  or  moral  intimidation.  The  cases 
of  Garret  v.  Tmjlor  ;{\)  Tarleton  v.  McGawley  ;{2)  Keeble  v.  Hick- 
erinffill  ;[3)  Carrington  v.  Taylor, (4)  are  all  cases  of  interferences 
by  physical  acts,  driving  away  either  the  birds  or  the  customers 
from  the  plaintiffs'  places  of  business.  Other  cases  were  cited  in 
which  one  man  has  persuaded  another  who  is  under  some  contract 
of  service  to  a  third  to  break  that  contract  to  the  damage  of  such 
third  person,  and  the  persuasion  has  been  held  actionable.  But  no 
case  has  been  or,  I  believe,  can  be  cited  where  the  only  means  used 
by  the  defendant  to  injure  the  plaintiff  has  been  competition  pure 
and  simple.  I  think  that  if  we  were  now  to  hold  interference  by 
mere  competition  unlawful,  we  should  be  laying  down  law  both 
novel  and  at  variance  with  that  which  modern  legislation  has  shewn 
to  be  the  present  policy  of  the  State. 

"  But  if  one  man  may  by  competition  strive  to  drive  his  rival  out 
of  the  field,  is  it  lawful  or  unlawful  for  several  persons  to  combine 
together  to  drive  from  the  field  their  competitor  in  trade  ?  It  is  said 
that  such  an  agreement  is  in  restraint  of  trade,  and  therefore  illegal. 
Be  it  so.  But  in  what  sense  is  the  word  '  illegal  '  used  in  such  a 
proposition  ?  In  my  opinion,  it  means  that  the  agreement  is  one 
upon  which  no  action  can  be  sustained,  and  no  relief  obtained  at  law 
or  in  equity  ;  but  it  does  not  mean  that  the  entering  into  the  agreement 
is  either  indictable  or  actionable.  The  authorities  on  this  point  are, 
I  think,  with  a  single  exception, uniform.     In  Mitchel  v.  Reynolds,  {^5) 

(1)  Cro.  Jac.  567.  (3)  11  East,  574,  n. 

(2)  Peake,  N.  P.  270.  (4)  11  East,  571. 

(5)  1  P.  Wms.  181  ;  1  Sm.  L.  C.  430,  9th  ed. 


66  ENGLISH  LAW  AS  TO 

Parker,  C.  J.,  in  discussing  contracts  in  restraint  of  trade,  says  : 
'  It  is  not  a  reason  against  them  that  they  are  against  lavr,  I  mean, 
in  a  proper  sense,  for  in  an  improper  sense  they  are.'  In  Price  v. 
Green,,{\)  Patteson,  J.,  in  delivering  the  judgment  of  the  Exchequer 
Cliamber  upon  a  covenant  held  void  as  in  restraint  of  trade,  said 
expressly  that  it  was  '  void  only,  not  illegal.'  In  Hilton  v.  Eckers- 
ley,{^)  the  bond  was  addressed,  not  as  in  Mitchel  v.  Reynolds, {^) 
only  to  negative  acts,  such  as  not  trading,  but  to  positive  acts,  such 
as  carrying  on  works  under  particular  directions,  and  closing  the 
works  at  the  dictation  of  a  majority  of  the  combining  owners.  In 
this  case  all  the  judges,  both  in  the  courts  of  Queen's  Bench  and  in 
the  Exchequer  Chamber,  held  that  the  bond  could  not  be  enforced  ; 
but  Crompton,  J.,  alone  thought  that  it  created  an  indictable  offence, 
Lord  Campbell,  C.  J.,  and  Erie,  J.,  expressing  an  opposite  opinion, 
and  the  Court  of  Exchequer  Chamber  carefully  abstaining  from  ex- 
pressing any  opinion  on  the  point.  The  language  of  all  the  judges 
in  the  cases  of  Hornby  v.  C/o.se(4)  and  Farrer  v.  Close{5)  is  con- 
sonant with  that  of  Lord  Campbell  and  Erie,  J.,  in  Hilton  v.  Eckers- 
ley,(2)  and  Crompton,  J.,  is,  I  believe,  the  only  judge  who  has  ever 
hitherto  held  such  contracts  illegal  as  well  as  void. 

"  If  every  agreement  in  restraint  of  trade  were  not  only  void,  but 
unlawful  in  the  stricter  sense  of  the  word,  it  would  follow  that,  as 
every  agreement  must  be  between  at  least  two  persons,  every  such 
agreement  would  constitute  an  indictable  offence,  and  yet  not  a  single 
case  has  been  cited  of  a  conspiracy  constituted  by  a  mere  agreement 
between  two  persons  in  undue  restraint  of  the  trade  of  one  of  the  con- 
tractors.    This  silence  of  the  books  is  very  significant. 

'*  It  was  forcibly  urged  upon  us  that  combinations  like  the  present 
are  in  their  nature  calculated  to  interfere  with  the  course  of  trade, 
and  that  they  are,  therefore,  so  directly  opposed  to  the  interest 
which  the  State  has  in  freedom  of  trade,  and  in  that  competition 
which  is  said  to  be  Ihe  life  of  trade,  that  they  nmst  be  indictable. 
It  is  plain  that  the  intention  and  object  of  the  combination  before  us 
is  to  check  competition  ;  but  the  means  it  uses  is  competition,  and 
it  is  difficult,  if  not  impossible,  to  weigh  against  one  another  the 

(1)  16  M.  &  W.  346. 
(3)  6  E.  &  B.  47. 

(3)  1  P.  Wms.  181  ;  1  Sm.  L.  C.  430,  9th  ed. 

(4)  Law  Rep.  2  Q.  B.  153. 

(5)  Law  Rep.  4  Q.  B.  603. 


PRIVATE   EMPLOYMENTS.  67 

probabilities  of  the  employment  of  competition  on  the  one  hand  and 
its  suppression  on  the  other  ;  nor  is  it  easy  to  say  how  far  the  suc- 
cess of  the  combination  would  arouse  in  others  the  desire  to  sliare  in 
its  benefits,  and  by  competition  to  force  a  way  into  the  magic  circle. 
In  Wickens  v.  £vans{l)  it  was  suggested  that  the  brewers  or  distil- 
lers of  London  might  enter  into  an  agreement  to  divide  the  metro- 
polis into  districts,  the  effect  of  which  might  be  to  supply  the  public 
with  an  inferior  commodity  at  a  higher  price.  This  argument  was 
met  by  Hullock,  B.,  by  this  observation  :  '  If  the  brewers  or  dis- 
tillers of  London  were  to  come  to  the  agreement  suggested,  many 
other  persons  would  soon  be  found  to  prevent  the  result  anticipated  ; 
and  the  consequences  would,  perhaps,  be,  that  the  public  would  ob- 
tain the  articles  they  deal  in  at  a  cheaper  rate.'  A  similar  observa- 
tion may  be  made  in  the  present  instance,  and  corroborated  by  what 
has  actually  happened.  For  the  case  before  us  strikingly  illustrates 
the  difficulty  of  foretelling  the  probable  results  of  such  a  combination 
on  the  public  interest;  in  fact,  the  competition  between  the  plaintiffs 
and  defendants  in  May  and  June,  1885,  brought  down  the  freights 
from  Hankoio,  to  the  benefit,  it  must  be  supposed,  of  the  consumer  in 
England.  The  conference  came  to  an  end  in  August,  1885,  and  in 
the  summer  of  1886  the  rate  of  freight  from  Hankow  was  determined 
by  free  competition  in  an  open  market  in  which  the  defendants  were 
competing  with  one  another. 

"  But  I  do  not  rest  my  conclusion  on  any  speculations  as  to  the 
probable  effect  of  such  agreements  as  the  one  before  us,  but  on  this  : 
that  the  combination,  if  in  restraint  of  trade,  is,  prima  facie,  void 
only  and  not  illegal ;  that  no  statute  in  force  makes  such  competition, 
criminal ;  and  that  the  policy  of  our  law,  as  at  present  declared  by 
the  legislature,  is  against  all  fetters  on  combination  and  competition 
unaccompanied  by  violence  or  fraud,  or  other  like  injurious  acts. 

'*  The  ancient  common  law  of  this  country,  and  the  statutes  with 
reference  to  the  acts  known  as  badgering,  forestalling,  regrating,  and 
engrossing,  indicated  the  mind  of  the  legislature  and  of  the  judges 
that  certain  large  operations  in  goods  which  interfered  with  the  more 
ordinary  course  of  trade  were  injurious  to  the  public  ;  they  were 
held  criminal  accordingly.  But  early  in  the  reign  of  George  HI. 
the  mind  of  the  legislature  shewed  symptoms  of  change  in  this  mat- 
ter, and  the  penal  statutes  were  repealed  (12  Geo.  III.,  c.  71),  and 

(1)  3  Y.  &  J.  318. 


68  ENGLISH   LAW   AS   TO 

the  common  law  was  left  to  its  unaided  operation.  This  repealing 
statute  contains  in  the  preamble  the  statement  that  it  had  been  found 
by  experience  that  the  restraint  laid  by  several  statutes  upon  the 
dealing  in  corn,  meal,  flour,  cattle,  and  sundry  other  sorts  of  victuals, 
by  preventing  a  free  trade  in  the  said  commodities,  had  a  tendency 
to  discourage  the  growth  and  to  enhance  the  price  of  the  same. 
This  statement  is  very  noteworthy.  It  contains  a  confession  of  fail- 
ure in  the  past  ;  the  indication  of  a  new  policy  for  the  future. 

"  This  new  policy  has  been  more  clearly  declared  and  acted  upon 
in  the  present  reign  ;  for  the  legislature  has  by  7  &  8  Vict.  c.  24, 
altered  the  common  law  by  utterly  abolishing  the  several  offences  of 
badgering,  engrossing,  forestalling  and  regraling.  At  the  same 
time  this  repeal  was  accompanied  by  a  proviso  that  nothing  in  the 
act  contained  should  apply  to  the  offence  of  knowingly  and  fraudu- 
lently spreading  or  conspiring  to  spread  any  false  rumour  with  intent 
to  enhance  or  decry  the  price  of  any  goods  or  merchandise,  or  to 
the  offence  of  preventing  or  endeavouring  to  prevent  by  force  or 
threats  any  goods,  wares,  or  merchandise  being  brought  to  any  fair 
or  market,  but  that  every  such  offence  might  be  punished  as  if  this 
act  had  not  been  made.  The  comparison  of  the  operative  part  of 
the  statute  with  this  proviso  goes  far  to  draw  the  line  between  lawful 
and  unlawful  interference  with  the  ordinary  course  of  trade  or  of  the 
market.  A  consideration  of  the  statutes  relative  to  trade  unions 
leads  me  to  a  similar  conclusion.  It  is  not  necessary  to  consider  in 
detail  the  provisions  of  the  statutes  of  1871  and  1875  (34  &  35  Vict, 
c.  31,  and  39  &  40  Vict.  c.  22)  ;  but  one  of  their  principal  results 
was  to  enlarge  the  power  of  combination  between  workmen  and 
workmen,  and  between  masters  and  masters,  for  the  purpose  of 
maintaining  and  enforcing  their  respective  interests,  and  to  remove 
the  objection  of  being  in  restraint  of  trade,  to  which  some  of  such 
combinations  had  been  obnoxious.  But  whilst  the  legislature  thus 
set  masters  and  men  respectively  free  to  combine,  they  reasserted 
the  illegality  of  using  violence,  threats,  molestation,  obstruction,  or 
coercion  ;  and  here  again  the  contrast  between  the  two  pieces  of 
legislation  which  stand  side  by  side  in  the  statute-book,  the  one  de- 
claring mere  combinations  lawful,  and  the  other  declaring  violence 
and  other  like  acts  unlawful,  helps  to  draw  the  line  in  the  same 
direction  as  does  the  legislation  in  respect  of  trade  combination. 
(See  the  statutes  34  &  35  Vict.  c.  31,  and  c.  32.) 

"  Thus  the  stream  of  modern  legislation  runs  strongly  in  favour 


PRIVATE   EMPLOYMENTS.  69 

of  allowing  great  combinations  of  persons  interested  in  trade,  and 
intended  to  govern  or  regulate  the  proceedings  of  large  bodies  of 
men,  and  thus,  necessaril}',  to  interfere  with  what  would  have  been 
the  course  of  trade  if  unaffected  by  such  combinations.  I,  there- 
fore, conclude  that  the  combination  in  the  present  case  cannot  be 
held  illegal,  as  opposed  to  the  policy  of  the  law. 

"  It  remains  to  inquire  whether  the  authorities  assist  in  the  de- 
cision of  the  question  before  us.  As  regards  an  individual,  I  have 
already  pointed  out  that  for  one  man  to  interfere  with  the  lawful 
trade  or  business  of  another  by  molestation  or  any  physical  interfer- 
ence, or  hy  fraud  or  misrepresentation,  may  be  an  actionable  wrong. 
But  no  authority  appears  to  shew  that  for  one  man  to  injure  the 
business  of  another  by  mere  competition,  even  though  it  may  be 
successfully  directed  to  driving  the  rival  out  of  the  town  where  he 
dwells  or  out  of  the  business  which  he  carries  on,  is  actionable.  And 
the  silence  of  the  books  is  strong  evidence  that  such  acts  are  not 
actionable. 

'*  With  regard  to  like  acts  done  by  a  combination  of  persons,  the 
authorities  are  not  very  numerous.  There  are  certain  general  state- 
ments in  text-books,  of  which  the  passage  in  Hawkins'  '  Pleas  of  the 
Crown,'  vol,  i.,  p.  446,  may  be  taken  as  a  fair  specimen.  '  There 
can  be  no  doubt,'  he  says,  '  but  that  all  confederacies  whatsoever, 
wrongfully,  to  prejudice  a  third  person  are  highly  criminal  at  com- 
mon law,  as  where  divers  persons  confederate  together  by  indirect 
means  to  impoverish  a  third  person. '  For  this  proposition  Hawkins 
cites  authorities  relative  to  two  cases:  first.  Rex  v.  Kimberty,[l) 
which  was  a  conspiracy  to  indict  the  prosecutor  for  having  begotten 
a  bastard  child  on  the  body  of  one  of  the  conspirators  ;  a  case,  there- 
fore, which  has  nothing  to  do  with  the  question  now  in  hand  ;  sec- 
ondly, Hex  V.  Sterling, [2)  in  which  the  indictment  charged  certain 
brewers  of  London  with  a  conspiracy  to  refuse  to  sell  small-beer, 
with  a  view  to  impoverish  the  excisemen,  and  with  intent  to  move 
the  common  people  to  pull  down  the  excise  house,  and  to  bring  the 
excisemen  into  hatred  of  the  people,  and  to  impoverish  and  disable 
them  from  paying  their  rent  to  the  King  ;  the  defendants  were  found 
guilty  of  counselling  and  assembling  to  impoverish  the  excisemen, 
and  not  guilty  of  the  residue  ;  and  thereupon  ultimately  judgment 

(1)  1  Levinz,  62. 

(2)  1  Levinz,  126  ;  1  Siderfiu,  174  ;  and  1  Keble,  650.  655. 


70  ENGLISH   LAW   AS  TO 

went  for  the  Crown.  The  real  ground  of  the  decision  was,  as  stated 
by  Holt,  C.  J.,  in  Reg.  v.  Daniell,{l)  that  the  offence  of  the  de- 
fendants was  of  a  public  nature  and  levelled  at  the  Government,  and 
it  is  therefore  no  authority  in  respect  of  a  combination  which  has  no 
such  object  or  effect.  But  one  argument  as  it  appears  in  Siderfin  is 
iniporlant.  It  was  urged  for  the  defendants  that  it  was  no  offence 
punishable  by  our  law  for  one  man  to  depauperate  another  with  a 
view  to  enrich  himself,  or  by  selling  commodities  at  cheaper  rates. 
The  court  did  not  deny  this  proposition,  but  drew  a  distinction  based 
upon  the  allegations  of  the  information,  which  were  supported  by 
the  verdict,  that  the  excise  was  parcel  of  the  revenue  of  the  King, 
and  that  to  impoverish  the  excisemen  was  to  render  them  incapable 
of  paying  these  revenues  to  the  King,  So  far,  therefore,  as  the 
case  goes  it  is  an  authority  rather  for  the  defendants  than  for  the 
plaintiffs  in  this  case. 

"  The  next  case  that  seems  relevant  is  Hex  v.  Eccles,{2)  before 
Lord  Mansfield  and  the  Court  of  King's  Bench.  The  defendant  and 
six  other  persons  had  been  convicted  on  two  counts,  charging  that 
the  defendants  and  others,  devising  unlawfully  and  by  indirect  means 
to  impoverish  one  Booth,  and  to  hinder  him  from  exercising  the 
trade  of  a  tailor,  conspired  by  wrongful  and  indirect  means  to  im- 
poverish him  and  to  hinder  him  from  exercising  his  said  business, 
and  that  the  defendants,  according  to  their  said  conspiracy,  did  so 
hinder  him.  It  was  moved  in  arresi  of  judgment  that  the  means  by 
which  the  mischief  was  to  be  effected  ought  to  have  been  set  out, 
but.  the  indictment  was  held  sufficient.  The  nature  of  the  acts  done 
by  the  defendants  does  not  appear,  nor  is  it  easy  to  learn  precisely 
on  what  principle  the  court  proceeded.  Lord  EUenborough,  in  Rex  v. 
Turner, i^d)  said  that  the  case  seemed  to  have  been  determined  on 
the  ground  of  restraint  of  trade,  in  which  case  it  would  probably  be 
no  authority  since  the  legislation  of  this  reign  with  reference  to  trade 
unions.  If  regarded  as  an  authority  merely  on  the  sufficiency  of  the 
indictments,  it  appears  open  to  some  question.  In  any  event,  it 
throws  no  clear  light  on  the  matter  now  for  decision. 

"  The  case  of  Cousins  v.  Smith[4:)  is  probably  not  applicable, 
since  it  proceeded  on  the  view  of  a  Court  of  Equity  of  forestalling 
and  regrating,   and   those   practices   are   not  now  unlawful.      The 

(1)  6  Mod.  99.  (3)  13  East,  238. 

(2)  1  Lea.  C.  C.  274.  (4)  13  Ves.  543. 


PRIVATE   EMPLOYMENTS.  71 

equitable  shadow  of  these  crimes  must,  I  think,  have  disappeared 
with  the  crimes  themselves. 

"  These  are,  so  far  as  I  am  aware,  all  the  relevant  authorities,  and 
none  of  them  appears  to  me  to  support  the  proposition  that  mere 
competition  of  one  set  of  men  against  another  man  carried  on  for  the 
purpose  of  gain  and  not  out  of  actual  malice  is  actionable,  even 
though  intended  to  drive  the  rival  in  trade  away  from  his  place  of 
business,  and  though  that  intention  be  actually  carried  into  effect. 

'*  For  these  reasons,  I  hold  that  the  judgment  of  the  Lord  Chief 
Justice  was  right,  and  that  the  appeal  should  be  dismissed  with 
costs." 

In  the  House  of  Lords(a)  opinions  were  delivered  by 
Lord  Halsbury,  Lord  Watson,  Lord  Bramwell,  Lord  Mor- 
ris, Lord  Field,  and  Lord  Hannen. 

Opinion  of  Lord  Halsbury,  L.  C,  p.  35. 

"  My  Lords,  notwithstanding  the  elaborate  examination  which  this 
case  has  undergone,  both  as  to  fact  and  law,  I  believe  the  facts  may 
be  very  summarily  stated,  and  when  so  stated  the  law  seems  to  me 
not  open  to  doubt. 

*'  An  associated  body  of  traders  endeavour  to  get  the  whole  of  a 
limited  trade  into  their  own  hands  by  offering  exceptional  and  very 
favourable  terms  to  customers  who  will  deal  exclusively  with  them  ; 
so  favourable  that  but  for  the  object  of  keeping  the  trade  to  them- 
selves they  would  not  give  such  terms  ;  and  if  their  trading  were  con- 
fined to  one  particular  period  they  would  be  trading  at  a  loss,  but  in 
the  belief  that  by  such  competition  they  will  prevent  rival  traders 
competing  with  them,  and  so  receive  the  whole  profits  of  the  trade 
to  themselves. 

"  I  do  not  think  that  I  have  omitted  a  single  fact  upon  which  the 
appellants  rely  to  show  that  this  course  of  dealing  is  unlawful  and 
constitutes  an  indictable  conspiracy. 

' '  Now  it  is  not  denied  and  cannot  be  even  argued  that  prima  facie 
a  trader  in  a  free  country  in  all  matters  '  not  contrary  to  law  may 
regulate  his  own  mode  of  carrying  on  his  trade  according  to  his  own 
discretion  and  choice.'  This  is  the  language  of  Baron  Alderson  in 
delivering  the  judgment  of  the  Exchequer  Chamber,  (1)  and  no  author- 

(a)  Law  Rep.  App.  Cas.  1892,  pp.  35  et  seq. 
(I)  Hilton  v.  Eckersley,  6  E.  &  B.,  at  pp.  74,  75. 


72  ENGLISH   LAW   AS   TO 

ity,  indeed  no  argument,  has  been  directed  to  qualify  that  leading 
proposition.  It  is  necessary,  therefore,  for  the  appellants  here  to 
show  that  what  I  have  described  as  the  course  pursued  by  the  asso- 
ciated traders  is  a  '  matter  contrary  to  law. ' 

"  Now,  after  a  most  careful  study  of  the  evidence  in  this  case,  I 
have  been  unable  to  discover  anything  done  by  the  members  of  the 
associated  body  of  traders  other  than  an  ofEer  of  reduced  freights  to 
persons  who  would  deal  exclusively  with  them  ;  and  if  this  is  unlaw- 
ful it  seems  to  me  that  the  greater  part  of  commercial  dealings, 
where  there  is  rivalry  in  trade,  nmst  be  equally  unlawful. 

^  TV  "jS  V  T*  "I*  T" 

*'  I  entiiely  adopt  and  make  my  own  what  was  said  by  Lord  Jus- 
tice Bowen  in  the  court  below  :  *  All  commercial  men  with  capital 
are  acquainted  with  the  ordinary  expedient  of  sowing  one  year  a 
crop  of  apparently  unfruitful  prices,  in  order  by  driving  competition 
away  to  reap  a  fuller  haivest  of  profit  in  the  future  ;  and  until  the 
present  argument  at  the  Bar  it  may  be  doubted  whether  shipowners 
or  merchants  were  ever  deemed  to  be  bound  by  law  to  conform  to 
some  imaginary  '  normal  '  standard  of  freights  or  prices,  or  that  law 
courts  had  a  right  to  say  to  them  in  respect  of  their  competitive 
tariffs,  "  Thus  far  shalt  thou  go,  and  no  further."  ' 

"  Excluding  all  I  have  excluded  upon  my  view  of  the  facts,  it  is 
very  difficult  indeed  to  formulate  the  proposition.  What  is  the 
wrong  done  ?  What  legal  right  is  interfered  with  ?  What  coercion 
of  the  mind,  or  will,  or  of  the  i^rson  is  effected  ?  All  are  free  to 
trade  upon  what  terms  they  will,  and  nothing  has  been  done  except 
in  rival  trading  which  can  be  supposed  to  interfere  with  the  appel- 
lants' interests. 

"  I  think  this  question  is  the  first  to  be  determined.  What  injury, 
if  any,  has  been  done  ?  What  legal  right  has  been  interfered  with  ? 
Because  if  no  legal  right  has  been  interfered  with,  and  no  legal  injury 
inficted,  it  is  vain  to  say  that  the  thing  might  have  been  done  by  an 
individual,  but  cannot  be  done  by  a  combination  of  persons.  My 
Lords,  I  do  not  deny  that  there  are  many  things  which  might  be  per- 
fectly lawfully  done  by  an  individual,  which,  when  done  by  a  number 
of  persons,  become  unlawful.  I  am  unable  to  concur  with  the  Lord 
Chief  Justice's  criticism(l)  (if  its  meaning  was  rightly  interpreted, 
which  I  very  much  doubt)    on  the  observations  made  by  my  noble 

(1)  21  Q.  B.  D.  551. 


PRIVATE  EMPLOYMENTS.  73 

and  learned  friend  Lord  Bramwell  in  Reg.  v.  Druitt,{l)  if  that  was 
intended  to  treat  as  doubtful  the  proposition  tliat  a  combination  to 
insult  and  annoy  a  person  would  be  an  indictable  conspiracy.  I 
should  have  tliought  it  as  beyond  doubt  or  question  that  such  a  com- 
bination would  be  an  indictable  misdemeanour,  and  I  cannot  think 
the  Chief  Justice  meant  to  throw  any  doubt  upon  such  a  proposition. 

"  But  in  this  case  the  thing  done,  the  trading  by  a  number  of 
persons  together,  effects  no  more  and  is  no  more,  so  to  speak,  a  combined 
operation  than  that  of  a  single  person.  If  the  thing  done  is  rendered 
unlawful  by  combination,  the  course  of  trade  by  a  person  who  singly 
trades  for  his  own  benefit  and  apart  from  partnership  or  sharing 
profits  with  others,  but  nevertheless  avails  himself  of  combined  action, 
would  be  open  to  the  same  objections.  The  merchant  who  buys  for 
him,  the  agent  who  procures  orders  for  him,  the  captain  who  sails 
his  ship,  and  even  the  sailors  (if  they  might  be  supposed  to  have 
knowledge  of  the  transaction)  would  be  acting  in  combination  for  the 
general  result,  and  would,  whether  for  the  benefit  of  the  individual, 
or  for  an  associated  body  of  traders,  make  it  not  the  less  combined 
action  than  if  the  combination  were  to  share  profits  with  independent 
traders  ;  and  if  a  combination  to  effect  that  object  would  be  unlaw- 
ful, the  sharers  in  the  combined  action  could,  in  a  charge  of  criminal 
conspiracy,  make  no  defence  that  they  were  captain,  agent,  or 
sailors,  respectively,  if  they  were  knowingly  rendering  their  aid  to 
what,  by  the  hypothesis,  would  be  unlawful  if  done  in  combination. 

"  A  totally  separate  head  of  unlawfulness  has,  however,  been 
introduced  by  the  suggestion  that  the  thing  is  unlawful  because  in 
restraint  of  trade.  There  are  two  senses  in  which  the  word  '  unlaw- 
ful '  is  not  uncommonly,  though,  I  think,  somewhat  inaccurately 
used.  There  are  some  contracts  to  which  the  law  will  not  give  effect  ; 
and  therefore,  although  the  parties  may  enter  into  what,  but  for  the 
element  which  the  law  condemns,  would  be  perfect  contracts,  the  law 
would  not  allow  them  to  operate  as  contracts,  notwithstanding  that, 
in  point  of  form,  the  parties  have  agreed.  Some  such  contracts  may 
be  void  on  the  ground  of  immorality  ;  some  on  the  ground  that  they 
are  contrary  to  public  policy  ;  as,  for  example,  in  restraint  of  trade  : 
and  contracts  so  tainted  the  law  will  not  lend  its  aid  to  enforce.  It 
treats  them  as  if  they  had  not  been  made  at  all.  But  the  more 
accurate  use  of  the  word  '  unlawful,'  which  would  bring  the  contract 

(1)  10  Cox,  C.  C.  593. 


74  ENGLISH  LAW  AS  TO 

within  the  qualification  which  I  have  quoted  from  the  judgment  of 
the  Exchequer  Chamber,  namely,  as  contrary  to  law,  is  not  applica- 
ble to  such  contracts. 

'*  It  has  never  been  held  that  a  contract  in  restraint  of  trade  is  con- 
trary to  law  in  the  sense  that  I  have  indicated.  A  judge  in  very 
early  times  expressed  great  indignation  at  such  a  contract  ;  and  Mr. 
Justice  Crompton  widoubtedly  did  say  {in  a  case  where  such  an  observa- 
tion was  wholly  unnecessary  to  the  decision,  and  therefore  manifestly 
obiter)  that  the  parties  to  a  contract  in  restraint  of  trade  would  be 
indictable.  I  am  unable  to  assent  to  that  dictum.  It  is  opposed  to 
the  whole  current  of  authority  ;  it  was  dissented  from  by  Lord  Camp- 
bell and  Chief  Justice  Erie,  and  found  no  support  when  the  case  in 
which  it  was  said  came  to  the  Exchequer  Chamber,  and  it  seems  to 
me  contrary  to  principle. ' ' 


Opinion  of  Lord  Watson,  p.  42. 

"  There  is  nothing  in  the  evidence  to  suggest  that  the  parties  to 
the  agreement  had  any  other  object  in  view  than  that  of  defending 
their  carrying-trade  during  the  season  against  the  encroachments  of 
the  appellants  and  other  competitors,  and  of  attracting  to  themselves 
custom  which  might  otherwise  have  been  carried  off  by  these  com- 
petitors. That  is  an  object  which  is  strenuously  pursued  by  mer- 
chants great  and  small  in  every  branch  of  commerce  ;  and  it  is,  in 
the  eye  of  the  law,  perfectly  legitimate.  If  the  respondents'  com- 
bination had  been  formed,  not  with  a  single  view  to  the  extension  of 
their  business  and  the  increase  of  its  profits,  but  with  the  main  or 
ulterior  design  of  effecting  an  unlawful  object,  a  very  different  ques- 
tion  would  have  arisen  for  the  consideration  of  your  Lordships.  But 
no  such  case  is  presented  by  the  facts  disclosed  in  this  appeal. 

"  The  object  of  the  combination  being  legal,  was  any  illegal  act 
committed  by  the  respondents  in  giving  effect  to  it  ?  The  appellants 
invited  your  Lordships  to  answer  that  question  in  the  affirmative,  on 
the  ground  that  the  respondents'  competition  was  unfair,  by  which 
they  no  doubt  meant  that  it  was  tainted  by  illegality.  .The  facts 
which  they  mainly  relied  on  were  these  :  that  the  respondents 
allowed  a  discount  of  5  per  cent,  upon  their  freight  accounts  for  the 
year  to  all  customers  who  shipped  no  tea  to  Europe  except  by  their 
vessels  ;  that,  whenever  the  appellants  sent  a  ship  to  load  tea  at 
Hankow,  the  respondents  sent  one  or  more  of  their  ocean  steamers 


PRIVATE  EMPLOYMENTS.  75 

to  underbid  her,  so  that  neither  vessel  could  obtain  cargo  on  remu- 
nerative  terms  ;  and  lastly,  that  the  respondents  took  away  the  agency 
of  their  vessels  from  persons  who  also  acted  as  shipping  agents  for 
the  appellants  and  other  trade  competitors  outside  the  combina- 
tion. 

"  I  cannot  for  a  moment  suppose  that  it  is  the  proper  function  of 
English  courts  of  law  to  fix  the  lowest  prices  at  which  traders  can  sell 
or  hire,  for  the  purpose  of  protecting  or  extending  their  business, 
without  committing  a  legal  wrong  which  will  subject  them  in  dam- 
ages. Until  that  becomes  the  law  of  the  land,  it  is,  in  my  opinion, 
idle  to  suggest  that  the  legality  or  mercantile  competition  ought  to  be 
gauged  by  the  amount  of  the  consideration  for  which  a  comjyeting 
trader  thinks  fit  to  part  with  his  goods  or  to  accept  employment.  The 
withdrawal  of  agency  at  first  appeared  to  me  to  be  a  matter  attended 
with  difficulty  ;  but  on  consideration,  I  am  satisfied  that  it  cannot  be 
regarded  as  an  illegal  act.  In  the  first  place,  it  was  impossible  that 
any  honest  man  could  impartially  discharge  his  duty  of  finding 
freights  to  parties  who  occupied  the  hostile  position  of  the  appellants 
and  respondents  ;  and,  in  the  second  place,  the  respondents  gave  the 
agents  the  option  of  continuing  to  act  for  one  or  other  of  them  in 
circumstances  which  placed  the  appellants  at  no  disadvantage. 

"  My  Lords,  in  this  case  it  has  not  been  proved,  and  it  has  not 
been  suggested,  that  the  respondents  used  either  misrepresentation  or 
compulsion  for  the  purpose  of  attaining  the  object  of  their  combina- 
tion. The  only  means  by  which  they  endeavoured  to  obtain  ship- 
ments for  their  vessels,  to  the  exclusion  of  others,  was  the  induce- 
ment of  cheaper  rates  of  freight  than  the  appellants  were  willing  to 
accept.  I  entertain  no  doubt  that  the  judgment  appealed  from  ought 
to  be  affirmed.  I  am  quite  satisfied  with  the  reasons  assigned  for  it 
by  Bowen  and  Fry,  L.  J  J. ;  and  the  observations  which  I  have  made 
were  not  meant  to  add  to  these  reasons,  but  to  make  it  clear  that  in 
my  opinion  the  appellants  have  presented  for  decision  no  question  of 
fact  or  law  attended  with  either  doubt  or  difficulty." 


Opinion  of  Lord  Bramwell,  p.  45. 

*'  The  first  position  of  the  plaintiffs  is  that  the  agreement  among 
the  defendants  is  illegal  as  being  in  restraint  of  trade,  and  therefore 
against  public  policy,  and  so  illegal.  '  Public  policy,'  said  Bur- 
rough,  J.  (I  believe,  quoting  Hobart,   C.   J.),  *  is  an  unruly  horse. 


76  ENGLISH   LAW   AS   TO 

and  dangerous  to  ride.'(l)  I  quote  also  another  distinguished  judge 
more  modern,  Cave,  J. :  '  Certain  kinds  of  contracts  have  been  held 
void  at  common  law  on  the  ground  of  public  policy  ;  a  branch  of 
the  law,  however,  which  certainly  should  not  be  extended,  as  judges 
are  more  to  be  trusted  as  interpreters  of  the  law  than  as  expounders 
of  what  is  called  public  policy. '(2)  I  think  the  present  case  is  an 
illustration  of  the  wisdom  of  these  remarks.  I  venture  to  make 
another.  No  evidence  is  given  in  these  public  policy  cases.  The 
tribunal  is  to  say,  as  matter  of  law,  that  the  thing  is  against  public 
policy,  and  void.  How  can  the  judge  do  that  without  any  evidence 
as  to  its  effect  and  consequences  ?  If  the  shipping  in  this  case  was 
sufficient  for  the  trade,  a  further  supply  would  have  been  a  waste. 
There  are  some  people  who  think  that  the  public  is  not  concerned 
with  this — people  who  would  make  a  second  railway  by  the  side  of 
one  existing,  saying  '  only  the  two  companies  will  suffer,'  as  though 
the  wealth  of  the  community  was  not  made  up  of  the  wealth  of  the 
individuals  who  compose  it.  I  am  by  no  means  sure  that  the  con- 
ference did  not  prevent  a  waste,  and  was  not  good  for  the  public. 
Lord  Coleridge  thought  it  was — see  his  judgment. 

"  As  to  the  suggestion  that  the  Chinese  profited  by  the  lowering 
of  freights,  I  cannot  say  it  was  not  so.  There  may  have  been  a 
monopoly  or  other  cause  to  give  them  a  benefit  ;  but,  as  a  rule,  it  is 
clear  that  the  expense  of  transit,  and  all  other  expenses,  borne  by  an 
exported  article  that  has  a  market  price,  are  borne  by  the  importer, 
therefore,  ultimately,  by  the  consumer.  So  that  low  freights  benefit 
him.  To  go  on  with  the  case,  take  it  that  the  defendants  had  bound 
themselves  to  each  other  ;  I  think  they  had,  though  they  might  with- 
draw. Let  it  be  that  each  member  had  tied  his  hands  ;  let  it  be 
that  that  was  in  restraint  of  trade  ;  I  think  upon  the  authority  of 
Hilton  V.  Eckersley,{2)  and  other  cases,  we  should  hold  that  the 
agreement  was  illegal,  that  is,  not  enforceable  by  lau\  I  will  assume, 
then,  that  it  was,  though  1  am  not  quite  sure.  But  that  is  not 
enough  for  the  plaintiffs.  To  maintain  their  action  on  this  ground 
they  must  make  out  that  it  was  an  offence,  a  crime,  a  misdemeanour. 
I  am  clearly  of  opinion  it  was  not.  Save  the  opinion  of  Crompton,  J. 
(entitled  to  the  greatest  respect,  but  not  assented  to  by  Lord  Cainp- 


(1)  Richardson  v.  Mellisli,  2  Bing.  at  p.  252. 

(2)  In  Re  Mirams,  L.  R,  1  Q.  B.  [1891]  595. 

(3)  6  E.  &  B.  47. 


PRIVATE   EMPLOYMENTS.  77 

bell  or  the  Exchequer  Chamber),  there  is  no  authority  for  it  in  the 
English  law. 

"  It  is  quite  certain  that  an  agreement  may  be  void,  yet  the  parties 
to  it  not  punishable.  Take  the  case  I  put  during  the  argument  :  a 
man  and  woman  agree  to  live  together  as  man  and  wife,  without 
marrying.  The  agreement  is  illegal,  and  could  not  be  enforced,  but 
clearly  the  parties  to  it  would  not  be  indictable.  It  ought  to  be 
enough  to  say  that  the  fact  that  there  is  no  case  where  there  has  been 
a  conviction  for  such  an  offence  as  is  alleged  against  the  defendants  is 
conclusive. 

"  It  is  to  be  remembered  that  it  is  for  the  plaintiffs  to  make  out 
the  case  that  the  defendants  have  committed  an  indictable  offence, 
not  for  the  defendants  to  disprove  it.  There  needs  no  argument  to 
prove  the  negative.  There  are  some  observations  to  be  made.  It  is 
admitted  that  there  may  be  fair  competition  in  trade,  that  two  may 
offer  to  join  and  com2)ete  against  a  third.  If  so,  what  is  the  definition 
of  '  fair  competition  '  ?  What  is  unfair  that  is  neither  forcible  nor 
fraudulent  ?  It  does  seem  strange  that  to  enforce  freedom  of  trade, 
of  action,  the  law  should  punish  those  who  make  a  perfectly  honest 
agreement  with  a  belief  that  it  is  fairly  required  for  their  protection. 

"  There  is  one  thing  that  is  to  me  decisive.  I  have  always  said 
that  a  combination  of  worktnen,  an  agreement  among  them  to  cease 
work  except  for  higher  wages,  and  a  strike  in  consequence,  urns  lawful 
at  common  law  ;  perhaps  not  enforceable  inter  se,  but  not  indictable. 
The  legislature  has  now  so  declared.  The  enactment  is  express,  that 
agreements  among  workmen  shall  be  binding,  whether  they  would  or 
would  not,  but  for  the  acts,  have  been  deemed  unlawful,  as  in  re- 
sti'aint  of  trade.  Is  it  supposable  that  it  would  have  done  so  in  the 
way  it  has,  had  the  workmen' s  combination  been  a  punishable  misde- 
meanour ?  Impossible.  This  seems  to  me  conclusive,  that  though 
agreements  which  fetter  the  freedom  of  action  in  the  parties  to  it 
may  not  be  enforceable,  they  are  not  indictable.  See  also  the  judg- 
ment of  Fry,  L.  J.,  on  this  point.  Where  is  such  a  contention  to 
stop  ?  Suppose  the  case  put  in  the  argument  :  In  a  small  town  there 
are  two  shops,  sufficient  for  the  wants  of  the  neighbourhood,  making 
only  a  reasonable  profit.  They  are  threatened  with  a  third.  The 
two  shopkeepers  agree  to  warn  the  intending  shopkeeper  that  if  he 
comes  they  will  lower  prices,  and  can  afford  it  longer  than  he.  Have 
they  committed  an  indictable  offence  ?  Remember  the  consjyiracy  is 
the  offence,  and  they  have  conspired.     If  he,  being  warned,  does  not 


78  ENGLISH  LAW  AS  TO 

set  up  his  shop,  has  he  a  cause  of  action  ?  He  might  prove  damages. 
He  might  shew  that  from  his  skill  he  would  have  beaten  one  or  both 
of  the  others.  See  in  this  case  the  judgment  of  Lord  Esher,  that 
the  plaintiffs  might  recover  for  '  damages  at  large  for  future  years. ' 
Would  a  shipowner  who  had  intended  to  send  his  ship  to  Shanghai, 
but  desisted  owing  to  the  defendants'  agreement,  and  on  being  told 
by  them  they  would  deal  with  him  as  they  had  with  the  plaintiffs,  he 
entitled  to  maintain  an  action  against  the  defendants  ?  Why  not  ? 
If  yes^  why  not  every  shipowner  who  could  say  he  had  a  ship  fit  for 
the  trade,  but  was  deterred  from  using  it? 

"  The  Master  of  the  Rolls  cites  Sir  William  Erie,  that  '  a  combi- 
nation to  violate  a  private  right  in  which  the  public  has  a  sufficient 
interest  is  a  crime,  such  violation  being  an  actionable  wrong.'  True. 
Sir  William  Erie  means  that  where  the  violation  of  a  private  right  is 
an  actionable  wrong,  a  combination  to  violate  it,  if  the  public  has  a 
sufficient  interest,  is  a  crime.  But.  in  this  case,  I  hold  that  there  is 
no  private  right  violated.  His  Lordship  further  says  :  '  If  one  goes 
beyond  the  exercise  of  the  course  of  trade,  and  does  an  act  beyond 
what  is  the  course  of  trade,  in  order — that  is  to  say,  with  intent — to 
molest  the  other's  free  course  of  trade,  he  is  not  exercising  his  own 
freedom  of  a  course  of  trade,  he  is  not  acting  in  but  beyond  the 
course  of  trade,  and  then  it  follows  that  his  act  is  an  unlawful  ob- 
struction of  the  other's  right  to  a  free  course  of  trade,  and  if  such 
obstruction  causes  damage  to  the  other  he  is  entitled  to  maintain  an 
action  for  the  wrong'  (1)  I  may  be  permitted  to  say  that  this  is  not 
very  plain.  I  think  it  means  that  it  is  not  in  the  course  of  trade  for 
one  trader  to  do  acts  the  motive  of  which  is  to  damage  the  trade  of 
another.  Whether  I  should  agree  depends  on  the  meaning  to  be  put 
on  '  course  of  trade  '  and  '  molest. '  But  it  is  clear  that  the  Master 
of  the  Rolls  means  conduct  which  would  give  a  cause  of  action 
against  an  individual.  He  cites  Sir  William  Erie  in  support  of  his 
proposition,  who  clearly  is  speaking  of  acts  tohich  would  be  actionable 
in  an  individual,  and  there  is  no  such  act  here.  The  Master  of  the 
Rolls  says  the  lowering  of  the  freight  far  beyond  a  lowering  for  any 
purpose  of  trade  was  not  an  act  done  in  the  exercise  of  their  own 
free  right  of  trade,  but  for  the  purpose  of  interfering  with  the  plain- 
tiffs' right  to  a  free  course  of  trade  ;  therefore  a  wrongful  act  as 
against  the  plaintiffs'  right  ;  and  as  injury  to  the  plaintiffs  followed, 

(1)23[Q.  B.  D.  607. 


PRIVATE   EMPLOYMENTS.  79 

they  had  a  right  of  action.  I  cannot  agree.  If  there  were  two 
shopkeepers  in  a  village  and  one  sold  an  article  at  cost  price,  not  for 
profit  therefor,  but  to  attract  customers  or  cause  his  rival  to  leave  oflE 
selling  the  article  only,  it  could  not  be  said  he  was  liable  to  an  action. 
I  cannot  think  that  the  defendants  did  more  than  they  had  a  legal 
right  to  do.  I  adopt  the  vigorous  language  and  opinion  of  Fry, 
L.  J. :  'To  draw  a  line  between  fair  and  unfair  competition,  between 
what  is  reasonable  and  unreasonable,  passes  the  power  of  the 
courts.' (1)  It  is  a  strong  thing  for  the  plaintiffs  to  complain  of  the 
very  practices  they  wish  to  share  in,  and  once  did. 

"  I  am  of  opinion  that  the  judgment  should  be  affirmed." 

Opinion  of  Lord  Morris,  p.  49. 

'*  The  object  was  a  lawful  one.  It  is  not  illegal  for  a  trader  to 
aim  at  driving  a  competitor  out  of  trade,  provided  the  motive  be  his 
own  gain  by  appropriation  of  the  trade,  and  the  means  he  uses  be 
lawful  weapons.  Of  the  first  four  of  the  means  used  by  the  defend- 
ants, the  rebate  to  customers  and  the  lowering  of  the  freights  are 
the  same  in  principle,  being  a  bonus  by  the  defendants  to  customers 
to  come  and  deal  exclusively  with  them.  The  sending  of  ships  to 
compete,  and  the  indemnifying  other  ships,  was  '  the  competition  ' 
entered  on  by  the  defendants  with  the  plaintiffs.  The  fifth  means 
used,  viz.,  the  dismissal  of  agents,  might  be  questionable  according 
to  the  circumstances  ;  but  in  the  present  case,  the  agents  filled  an 
irreconcilable  position  in  being  agents  for  the  two  rivals,  the  plaintiffs 
and  the  defendants.  Dismissal  under  such  circumstances  became, 
perhaps,  a  necessary  incident  of  the  warfare  in  trade. 

"  All  the  acts  done,  and  the  means  used,  by  the  defendants  were 
acts  of  competition  for  the  trade.  There  was  nothing  in  the  de- 
fendants' acts  to  disturb  any  existing  contract  of  the  plaintiffs,  or  to 
induce  any  one  to  break  such.  Their  action  was  aimed  at  making  it 
unlikely  that  any  one  would  enter  into  contracts  with  the  plaintiffs, 
the  defendants  offering  such  competitive  inducements  as  would  prob- 
ably prevent  them.  The  use  of  rhetorical  phrases  in  the  corre- 
spondence cannot  affect  the  real  substance  and  meaning  of  it. 

"  Again,  %vhat  one  trader  may  do  in  respect  of  co)npetition,  a  body 
or  set  of  traders  can  lawfully  do  ;  otherwise  a  large  capitalist  could  do 

(1)  23  Q.  B.  D.  625,  626. 


80  ENGLISH   LAW   AS   TO 

what  a  number  of  small  capitalists,  comhining  together,  could  not  do, 
and  thus  a  blow  would  be  struck  at  the  very  principle  of  co- operation 
and  joint-stock  enterprise.  I  entertain  no  doubt  that  a  body  of 
traders,  whose  motive  object  is  to  promote  their  own  trade,  can  com- 
bine to  acquire,  and  thereby  in  so  far  to  injure  the  trade  of  com- 
petitors, provided  they  do  no  more  than  is  incident  to  such  motive 
object,  and  use  no  unlawful  means.  And  the  defendants'  case 
clearly  comes  within  the  principle  I  have  stated. 

*'  But  suppose  the  combination  in  this  case  was  such  as  might  be 
held  to  be  m  restraint  of  trade,  what  follows  ?  It  could  not  be  en- 
forced. None  of  the  parties  to  it  could  sue  each  other.  It  might 
be  held  void,  because  its  tendency  might  be  held  to  be  against  the 
public  interests.  Does  that  make,  per  se,  the  combination  illegal  ? 
What  a  fallacy  would  it  be  that  what  is  void  and  not  enforceable 
becomes  a  crime  ;  and  cases  abound  of  agreements  which  the  law  would 
not  enforce,  but  which  are  not  illegal ;  which  you  may  enter  into,  if 
you  like,  but  which  you  tvill  not  get  any  assistance  to  enforce. 

"  My  Lords,  I  have  merely  summarised  my  views,  because  I  adopt 
entirely  the  principles  laid  down  by  Lord  Justice  Bowen  in  his  judg- 
ment wiih  such  felicitous  illustrations,  and  I  concur  in  the  opinion 
already  announced  by  your  Lordships,  that  the  judgment  of  the 
Court  of  Appeals  should  be  affirmed." 


Ox)iiiion  of  Lord  Hannen,  p.  58. 

"  It  was  contended  that  the  agreement  between  the  defendants  to 
act  in  combination  which  was  proved  to  exist,  was  illegal  as  being 
in  restraint  of  trade.  I  think  that  it  was  so,  in  the  sense  that  it  was 
void,  and  could  not  have  been  enforced  against  any  of  the  defendants 
who  might  have  violated  it  :  Hilton  v.  EcJcersley.{\)  But  it  does 
not  follow  that  the  entering  into  such  an  agreement  would,  as  con- 
tended, subject  the  persons  doing  so  to  an  indictment  for  conspiracy, 
and  I  think  that  the  opinion  to  that  effect  expressed  by  Crompton,  J., 
in  Hilton  v.  Eckersley{\)  is  erroneous. 

"  The  question,  however,  raised  for  our  consideration  in  this  case 
is  whether  a  person  who  has  suffered  loss  in  his  business  by  the 

(1)  6  E.  &  B.  47. 


PRIVATE   EMPLOYMENTS.  81 

joint  action  of  lliosc  wlio  have  entered  into  such  an  agreement,  can 
recover  daniaii;es  from  them  for  tlie  injury  so  sustained.  In  consid- 
erino-  this  question  it  is  necessary  to  determine  upon  the  evidence 
wiiat  was  the  object  of  the  agreement  between  the  defendants  and 
what  were  the  means  by  which  they  sought  to  attain  that  object. 
It  appears  to  me  that  their  object  was  to  secure  to  themselves  the 
benefit  of  the  carrying  trade  from  certain  ports.  It  cannot,  I  thivky 
he  reasonably  suggested  that  this  is  unlawful  in  any  sense  of  the 
word.  The  object  of  every  trader  is  to  procure  for  himself  as  large 
a  share  of  the  trade  he  is  engaged  in  as  he  can.  If  then  the  object 
of  the  defendants  was  legitimate,  were  the  means  adopted  by  them 
open  to  objections?  I  cannot  see  that  they  ivere.  They  sought  to 
induce  sliippers  to  employ  them  rather  than  the  plaintiffs  by  offering 
to  such  shippers  as  should  during  a  fixed  period  deal  exclusively  witli 
tliem  the  advantage  of  a  rebate  upon  the  freights  they  had  paid. 
This  is,  in  effect,  nothing  more  than  the  ordinary  form  of  competition 
between  traders  by  offering  goods  or  services  at  a  cheaper  rate  than 
their  rivals. 

*  *  *  *  *  *  * 

' '  It  only  remains  for  me  to  refer  to  the  argument  that  an  act 
which  might  be  lawful  for  one  to  do,  becomes  criminal,  or  the  subject 
of  civil  action  by  any  one  injured  by  it,  if  done  by  several  combining 
together.  On  this  point  I  think  the  law  is  accurately  stated  by  Sir 
William  Erie  in  his  treatise  on  the  law  relating  to  trades  unions. 
The  principle  he  lays  down  is  equally  api)licable  to  combinations 
other  than  those  of  trades  unions.  lie  says  (p.  23)  :  '  As  to  com- 
bination, each  person  has  a  right  to  choose  whether  he  will  labour  or 
not,  and  also  to  choose  the  terms  on  which  he  ivill  consent  to  labour, 
if  labour  be  his  choice.  The  power  of  choice  in  respect  of  labour  and 
terms  which  one  person  may  exercise  and  declare  singly,  many,  after 
consultation,  may  exercise  jointly,  and  they  may  make  a  simultaneous 
declaration  of  their  choice,  and  may  lawfully  act  thereon  for  the  im- 
mediate purpose  of  obtaining  the  required  terms,  but  they  cannot  create 
any  mutual  obligation  having  the  legal  effect  of  binding  each  other 
not  to  work  or  not  to  employ  unless  upon  terms  allowed  by  the  com- 
bination.' 

"  In  considering  the  question,  however,  of  what  was  the  motive 
of  the  combination,  whether  it  was  for  the  purpose  of  injuring  others, 
or  merely  in  order  to  benefit  those  combining,  tlie  fact  of  several 
agreeing  to  a  common  course  of  action  may  be  important.     There 


82  ENGLISH   LAW   AS   TO 

are  some  forms  of  injury  which  can  only  be  effecled  by  the  combina- 
tion of  many.  Thus,  if  several  persons  agree  not  to  deal  at  all  with 
a  particular  individual,  as  this  could  not,  under  ordinary  circum- 
stances, benefit  the  persons  so  agreeing,  it  might  well  lead  to  the 
conclusion  that  their  real  object  was  to  injure  the  individual.  But 
it  appears  to  me  that,  in  the  present  case,  there  is  nothing  indicating 
an  intention  to  injure  the  plaintiffs,  except  in  so  far  as  such  injury 
would  be  the  result  of  the  defendants  obtaining  for  themselves  the 
benefits  of  the  carrying  trade,  by  giving  better  terms  to  customers 
than  their  rivals,  the  plaintiffs,  were  willing  to  offer. 

"  For  these  reasons  I  think  that  the  judgment  of  the  Court  of 
Appeals  should  be  afiirmed." 

This  case  definitely  established  the  i^osition,  that, 
under  the  common  law  of  England,  a  combination  for  the 
express  purpose  of  preventing  competition  between  the 
parties  combining,  and  of  destroying  comj^etition  from 
all  outside  parties,  even  in  the  case  of  common  carriers, 
was  lawful  ;  not  only  that  it  did  not  constitute  a  crime, 
but  that  it  did  no  individual  a  civil  legal  injury.  If  such 
a  combination  had  ever  been  a  crime  under  the  English 
common  law,  it  still  remained  so,  notwithstanding  all  re- 
pealing statutes.  The  case,  therefore,  is  an  authority  in 
the  most  conclusive  form,  that  such  a  combination,  in 
England,  though  the  law  might  not  enforce  it,  never  was 
illegal,  in  the  absence  of  a  statute  making  it  so,  either 
civilly  or  criminally,  notwithstanding  all  the  dicta  in  the 
opinions  of  difi'erent  judges,  and  the  remarks  of  writers 
of  legal  treatises. 

A  review  of  the  course  of  development  of  the  English 
law  on  the  matters  here  under  consideration  leads  us  then 
to  these  conclusions  : 

I.  The  English  law  as  to  combinations  in  restraint  of 
trade,  on  its  criminal  side,  was  only  one  feature  of 
the  attempts,  in  the  early  rudimentary  stages  of  the 
growth  of  that  law,  to  control  and  regulate  trade  and 
commerce  by  statute,  as  to  times  and  manner  of  labor, 
prices  of  labor,  quality  of  merchandise,  and  prices  of  mer- 
chandise.    Those  attempts  to  control  trade  and  commerce 


PRIVATE   EMPLOYMENTS.  83 

went  hand  in  hand  with  attempts  to  regulate  apparel, 
and  the  ways  of  living,  by  statute. 

II.  Combinations  to  raise  the  j^rices  of  merchandise, 
from  the  earliest  times,  were  on  the  same  legal  footing 
with  combinations  to  raise  the  prices  of  labor. 

III.  Attempts  to  raise  j^rices  by  single  individuals  were 
on  the  same  legal  footing,  as  to  their  criminality,  with 
like  attempts  by  individuals  in  combination. 

IV.  The  right  to  sell  his  own  property  at  his  own  price, 
whether  that  property  be  labor  or  merchandise,  and 
whether  that  price  be  fixed  by  single  individuals  sepa- 
rately, or  by  individuals  in  combination,  has  at  last  been 
fully  recognized  by  the  English  law. 

Y.  There  is  no  authentic  record  of  any  authoritative 
decision  of  any  English  Court,  which  holds  that  a  com- 
bination merely  to  raise  prices,  of  the  labor  or  merchan- 
dise of  the  parties  combining,  ever  constituted  a  crime 
independently  of  statute. 

YI.  The  case  Mogul  Steamship  Company  v.  McGregor 
necessarily  7iolds  that  such  a  contract  of  combination, 
independently  of  any  statute,  though  the  courts  might 
not  enforce  it,  never  constituted  a  crime,  or  a  legal  wrong. 


CHAPTER  II. 

THE     COURSE     OF     THE     ENGLISH     LAW     AS      TO      PUBLIC 
EMPLOYMENTS. 

In  the  earlier  stages  of  the  growth  of  the  English  law 
no  distinction  was  drawn,  as  to  the  right  of  the  State  to 
control  the  prices  of  merchandise  and  the  manner  of 
carrying  on  trades  and  professions,  between  employments 
that  ^s'ere  private  and  employments  that  w^ere  public. 

That  distinction  is  a  product  of  a  later  date.  Its  chief 
development,  due  to  questions  of  our  constitutional  law, 
has  been  in  this  country. 

That  distinction  is,  however,  now  well  established.  It 
is  also  now  well  established  as  the  fundamental  law  in 
this  country,  where  legislatures  are  the  creatures  of  con- 
stitutions, and  where  their  powers  have  legal  limitations, 
that  the  State  has  the  lawful  power  to  control  prices,  and 
methods,  in  employments  and  properties  that  are  public, 
while  it  has  no  such  power  as  to  employments  and  prop- 
erties that  are  i)rivate.  As  Chief  Justice  Waite  declared 
in  Munn  v.  People  of  Illinois,  4  Otto,  113,  "  Undoubt- 
edly, in  mere  private  contracts,  relating  to  matters  in 
which  the  public  has  no  interest,  what  is  reasonable  must 
be  ascertained  judicially.  But  this  is  because  the  legis- 
lature has  no  control  over  such  a  contract.  So,  too,  in 
matters  which  do  affect  the  public  interest,  and  as  to 
which  legislative  control  may  he  exercised,  if  there  are 
no  statutory  regulations  upon  the  subject,  the  court  must 
determine  what  is  reasonable.  The  coiitr oiling  fact  is 
the  poioer  to  regulate  at  all.  If  that  exists,  the  right  to 
establish  the  maximum  of  charge,  as  one  of  the  means 
of  regulation,  is  implied.     In  fact,  the  common  law  rule. 


PUBLIC   EMPLOYMENTS.  85 

which  requires  the  charge  to  be  reasonable,  is  itself  a 
regulation  as  to  price.  Without  it  the  oioner  could  make 
Ms  rates  at  to  ill,  and  compel  the  puhlic  to  yield  to  his 
terms,  or  forego  the  usey 

In  early  times  the  nnmber  and  importance  of  these 
public  employments  were  comj^aratively  small.  Inn- 
keepers, common  carriers,  millers,  wharfingers,  and  the 
owners  of  ferries,  were  nearly  the  only  private  persons 
who  followed  public  employments.  Among  these,  it  is 
to  be  noted  that  common  carriers,  whartingers,  and  the 
owners  of  ferries,  constituted  part  of  the  existing  system 
of  public  transportation — were,  in  a  sense,  a  part  of  the 
existing  sj'stem  of  public  highways.  Indeed,  inn- 
keepers almost  fell  within  the  same  classification,  and 
therefore  fell  within  its  reason.  The  inns  were  the  stop- 
l^ing-places  for  all  the  king's  subjects,  in  their  ordinary 
use  of  the  king's  highways. 

The  right  of  stafe  control  of  innkeepers  was  asserted 
in  England  from  a  very  early  date,  in  statutes  which  regu- 
lated both  prices  and  labor,  in  employments  and  trades 
which  it  would  now  be  conceded  are  private.  The  law, 
from  a  very  early  time,  took  from  innkeepers  the  ordinary 
contractual  freedom  which  the  subject  naturally  enjoyed 
in  matters  of  private  trade  and  commerce.  The  innkeeper 
was  required  to  admit  to  his  inn  all  persons  who  applied 
peaceably  to  be  admitted  as  guests.  In  case  of  refusal 
he  was  liable  to  indictment,  (a)  He  was  held  liable  as 
an  insurer,  for  the  goods  of  his  guest.  In  modern  times 
the  right  of  state  control  of  inns  has  continually  been  as- 
serted, and  is  never  questioned. 

So,  too,  the  right  of  the  state  to  control  common  car- 
riers, as  to  their  charges,  and  the  manner  of  performance 
of  their  duties,  has  for  a  long  time  been  unquestioned 
under  the  English  law.  Common  carriers,  too,  from 
a  very  early  period  were  deprived  of  the  ordinary  con- 
tractual freedom  of   the  subject.     From  an  early  time 

(a)  Rex  V.  Ivem,  7  C.  &  P.  213. 


86  ENGLISH   LAW   AS   TO 

public  control  of  common  carriers  was  exercised  l)y 
statute.  The  Act  3  William  and  Mary,  Cap.  XII.,  sect. 
24,  provided  :  "  That  the  justices  of  the  peace  of  every 
county  and  other  place  .  .  .  shall  have  power  or  au- 
thority, and  are  hereby  enjoined  and  required  at  their 
next  respective  quarter  or  general  sessions  after  Easter 
Day,  yearly,  to  assess  and  rate  the  ijrices  of  all  land  car- 
riage of  goods  whatsoever,  to  be  brought  into  any  place  or 
places  within  their  respective  limits  and  jurisdictions,  by 
any  common  waggoner  or  carrier,  and  the  rates  and 
assessments  so  made  to  certify  to  the  several  mayors 
and  other  chief  officers  of  each  respective  market  town 
within  the  limits  and  jurisdictions  of  such  justices  of  the 
peace,  to  be  hung  ui>  in  some  publick  place  in  every 
such  market  town,  to  which  all  persons  may  resort  for 
their  information ;  and  that  no  such  common  waggoner 
or  carrier  shall  take  for  carriage  of  such  goods  and 
merchandises  above  the  rates  and  prices  so  set,  upon  pain 
to  forfeit  for  every  such  offense  the  sum  of  five  pounds, 
to  be  levied  by  distress  and  sale  of  his  and  their  goods, 
by  warrant  of  any  two  justices  of  the  peace,  where  such 
waggoner  or  carrier  shall  reside,  in  manner  aforesaid,  to 
the  use  of  the  party  grieved.' '  The  Act  2  &  3  Will.  IV., 
c.  120,  regulated  duties,  licenses,  number  of  passengers, 
luggage,  etc.,  as  regarded  stage  carriage.  By  the  Act  2  & 
3  Victoria,  chai3.  6Q,  sect.  1,  those  duties  were  changed. 
The  Railway  and  Canal  Traffic  Act,  1854,  17  &  18  Vict., 
c.  31,  provided  that  "  everj^  railway  company,  canal 
company  and  railway  and  canal  company  shall,  accord- 
ing to  their  respective  powers,  afford  all  reasonable  facili- 
ties for  the  receiving  and  forwarding  and  delivering  of 
traffic  upon  and  from  the  several  railways  and  canals 
belonging  to  or  worked  by  such  companies  resx^ectively, 
and  for  the  return  of  carriages,  trucks,  boats  and  other 
vehicles  ;  and  no  such  company  shall  make  or  give  any 
undue  or  unreasonable  preference  or  advantage  to  or  in 
favor  of  any  particular  person  or  comiDany,  or  any  particu- 
lar description  of  traffic,  in  any  respect  whatsoever,  nor 


PUBLIC   EMPLOYMENTS.  87 

shall  any  such  company  subject  any  particular  person  or 
company,  or  any  particular  description  of  traffic,  to  any 
undue  or  unreasonable  prejudice  or  disadvantage  in  any 
respect  whatsoever  ;  and  every  railway  company  and 
canal  company  and  railway  and  canal  companj^  having  or 
working  railways  or  canals,  which  form  part  of  a  con- 
tinuous line  of  railway  or  canal  or  railway  and  canal 
communication,  or  which  have  the  terminus,  station  or 
wharf  of  the  one  near  the  terminus,  station  or  wharf  of 
the  other,  shall  aiford  all  due  and  reasonable  facilities  for 
receiving  and  forwarding  all  the  traffic  arriving  by  one 
of  such  railways  or  canals  by  the  other,  without  any  un- 
reasonable delay,  and  without  any  such  preference  or 
advantage,  or  prejudice  or  disadvantage  as  aforesaid,  and 
so  that  no  obstruction  may  be  offered  to  the  public  de- 
sirous of  using  such  railways  or  canals  or  railways  and 
canals  as  a  continuous  line  of  communication,  and  so  that 
all  reasonable  accommodation  may,  by  means  of  the  rail- 
ways and  canals  of  the  several  companies,  be  at  all  times 
afforded  to  the  public  in  that  behalf." 

Section  third  provided,  that  any  company  or  person 
complaining  against  any  such  companies  or  company  of 
anything  done,  or  of  any  omission  made,  in  violation  or 
contravention  of  the  act,  could  apply  in  a  summary  way 
by  motion  or  summons  to  the  Court  of  Common  Pleas, 
or  to  a  judge  thereof  ;  that  the  Attorney- General  could 
also  apply  to  the  court  or  a  judge  thereof,  to  hear  and 
determine  the  matter  of  such  comjDlaint,  and  in  the  dis- 
cretion of  the  court  could  direct  and  prosecute  by  engi- 
neers, barristers  or  other  persons,  all  such  inquiries  as 
might  be  deemed  necessary  to  enable  the  court  or  judge 
to  form  a  just  judgment  on  the  matter  of  such  complaint ; 
and  if  it  appeared  to  the  court  or  judge  on  such  hearing, 
and  on  the  report  of  such  persons,  that  anything  had 
been  done  or  omission  made  in  violation  or  contravention 
of  the  act,  a  writ  of  injunction  could  be  issued  restrain- 
ing the  company  or  companies  from  further  continuing 
such  violation  or  contravention,  and  enjoining  obedience 


88  ENGLISH   LAW   AS   TO   PUBLIC   EMPLOYMENTS. 

thereto.  The  section  also  provided  for  the  issiiing  of  a 
writ  of  attachment  against  any  one  or  more  of  the  direct- 
ors of  the  com^Dany,  or  against  any  owner,  lessee,  director 
or  other  person  failing  to  obey  the  writ,  and  for  an  order 
directing  the  payment  by  any  of  such  companies  of  any 
such  sum  of  money  as  the  court  or  any  judge  might  de- 
termine, not  exceeding  200  pounds  for  every  day  of  a 
failure  to  obey  the  injunction. 

By  the  Act  36  &  37  Victoria,  Chap.  48,  the  Regulation 
of  Railways  Act,  1873,  three  railway  commissioners  were 
appointed,  to  whom  was  transferred  the  jurisdiction  ex- 
ercised by  the  Court  of  Common  Pleas  under  the  Rail- 
way and  Canal  Act,  1854. 

It  would  not  be  within  the  purview  of  this  present  ex- 
amination to  go  into  any  detailed  statement  of  the  cases 
which  have  arisen,  or  of  the  decisions  that  have  been 
made,  under  those  acts.  It  is  sufficient  to  say,  that  the 
practice  is  eminently  simple,  as  is  usually  the  case  in  all 
modern  English  i)rovisions  for  the  administration  of  jus- 
tice, and  the  act  has  been  found,  so  far  as  my  information 
goes,  amply  sufficient  to  redress  any  substantial  injuries 
done  by  common  carriers  to  the  public. 

It  is  evident,  from  this  short  statement,  that  the  course 
of  the  English  law  as  to  common  carriers  has  been  directly 
the  reverse  of  its  course  as  to  private  employments.  In 
the  early  stages  of  the  English  law,  the  attempts  by  the 
state  to  regulate  private  employments  and  i^rivate  trade 
were  manifold.  On  the  other  hand,  the  regulation  and 
control  of  common  carriers  was  comparatively  imperfect. 
As  to  private  employments,  the  growth  of  the  law  has 
been  continuous  to  its  present  condition  of  virtually  com- 
plete non-interference.  As  to  common  carriers,  on  the 
other  hand,  the  state  control  is  now  i)ractically  unre- 
stricted, and  is  ample  for  the  protection  of  all  rights  of 
the  citizen.  The  growth  in  the  one  branch  of  the  law  has 
been  from  a  condition  of  minute  and  annoying  restriction 
to  one  of  complete  freedom.  In  the  other,  it  has  been 
from  a  (condition  of  comparative  freedom  to  one  of  com- 
I)lete  and  adequate  supervision  and  control. 


CHAPTER   III. 

THE    COURSE    OF    THE    AMERICAN    LAW     AS     TO   PRIVATE 
EMPLOYMENTS    UNTIL   CERTAIN   RECENT   DECISIONS. 

Recent  criminal  prosecutions  in  this  country  for  mere 
combinations  to  raise  or  maintain  the  prices  of  merchan- 
dise of  the  parties  combining,  or  to  prevent  competition 
in  the  sale  of  merchandise  between  the  parties  combining, 
tliough  arising  under  special  statutes,  have  almost  invari- 
ably been  classified,  in  the  decisions  of  the  courts  under 
those  statutes,  as  "  Conspiracies  to  commit  acts  injuri- 
ous to  trade  or  commerce. " 

Before  considering  those  decisions,  it  is  necessary  to 
ascertain  exactly  the  course  of  the  law  down  to  the  time 
when  the  statutes  in  question  were  passed.  We  shall 
also  thereafter  trace  the  course  of  judicial  interpretation 
of  those  statutes  down  to  the  time  of  the  making  of  those 
decisions. 

In  the  first  place,  we  have  the  position,  that  under  the 
English  common  law,  indejjendently  of  any  statute,  com- 
binations of  this  character  were  not  unlawful,  either  civ- 
illy or  criminally.  They  violated  no  legal  right,  of  any 
individual,  or  of  the  j^ublic.  The  Mogul  Steamship  case 
conclusively  establishes  that.  Such  combinations  are  no 
novelty.  They  have  long  been  known  to  the  English 
law,  and  have  been  made  the  subject  of  adjudication  in 
the  English  Courts.  It  had  long  been  the  established 
law  in  England,  that  combinations  of  that  character  would 
not  always  be  enforced  by  the  Courts.  Bat  that  was  all. 
They  were  lawful. 

In  the  next  place,  it  is  evident,  as  already  stated,  that 
in  England  the  criminal  law  as  to  combinations  to  raise 


90  AMERICAN   LAW   AS   TO 

prices  of  merchandise,  and  as  to  combinations  to  raise 
prices  of  labor,  rested  on  the  same  footing  ;  that  botli  be- 
came crimes  only  by  statute  ;  that  the  statutes  as  to  both 
formed  i^art  of  the  ancient  general  scheme  of  legislation 
for  state  control  of  prices  ;  and  that  those  statutes  had 
]:>ecome  virtually  obsolete  in  England  long  before  the 
American  colonies  separated  from  the  mother  country. 

That  this  was  the  situation  in  England  will  be  made 
still  more  clear  from  the  treatment  of  the  law  of  con- 
spiracy by  Sir  William  Blackstone.  The  entire  text  of 
Blackstone  on  the  crime  of  "  consi^iracy"  is  to  be  found 
in  his  chapter  "  Of  offences  ^gdiiw^t  public  justice.''''  The 
fifteenth  of  those  offences  is  mentioned  as  follows  : 

"  A  conspiracy  also  to  indict  an  innocent  man  of  felony  falsely 
and  maliciously,  who  is  accordingly  indicted  and  acquitted,  is  a  far- 
ther abuse  and  perversion  of  public  justice  ;  for  which  the  party  in- 
jured may  eitiier  have  a  civil  action  by  writ  of  conspiracy,  (of  which 
we  spoke  in  tlie  preceding  book,)  or  the  conspirators,  for  there  must 
be  at  least  two  to  form  a  conspiracy,  may  be  mdicted  at  the  suit  of 
the  king,  and  were  by  the  ancient  common  law  to  receive  what  is 
called  the  villenous  judgment,  viz.,  to  lose  their  liberam  legem, 
Avhereby  they  are  discredited  and  disabled  as  jurors  or  witnesses  ;  to 
forfeit  their  goods  and  chattels,  and  lands  for  life  ;  to  have  those 
lands  wasted,  their  houses  razed,  their  trees  rooted  up,  and  their 
own  bodies  committed  to  prison.  ...  To  this  head  may  be  re- 
ferred the  offence  of  sending  letters  threatening  to  accuse  any  person 
of  a  crime  punishable  with  death,  transportation,  pillory,  or  other 
infamous  punishment,  with  a  view  to  extort  from  him  any  money  or 
other  valuable  chattels.  This  is  punishable  by  statute  30  Geo,  11. , 
c.  24,  at  the  discretion  of  the  court  with  tine,  imi^risonment,  pillory, 
wliipping,  or  transportation  for  seven  years." 

But  there  is  no  mention,  in  that  connection,  of  conspira- 
cies in  restraint  of  trade,  or  of  conspiracies  to  raise  or 
maintain  prices. 

It  is  not  to  be  maintained,  of  course,  that,  because 
Blackstone  omits  to  mention  any  other  conspiracies,  no 
others  existed.  But  this  fact,  taken  in  connection  with 
the  Mogul  Steamsltij)   case,  and  with  the  other  facts 


PRIVATE   EMPLOYMENTS.  91 

hereinbefore  stated,  makes  it  quite  evident  that  a  mere 
combination  to  raise  wages  or  prices,  or  to  prevent  com- 
petition between  the  parties  combining,  was  not  an  in- 
dictable consxnracy  independently  of  statute. 

Having  gone  so  far,  let  us  next  see  what  was  the  Eng- 
lish criminal  law  as  to  acts  "  injurious  to  trade  and  com- 
merce" irrespective  of  the  element  of  conspiracy. 

Here  we  find  that  there  was  a  well-recognized  class  of 
such  crimes.  They  were  enumerated  by  Blackstone 
in  his  Chapter  XII.  of  Book  IV.,  entitled  "  Of  Offences 
against  Public  Trade." 

Under  that  classification  he  enumerates  the  following  : 

1.  "  Owding,  so  called  from  its  being  usually  carried  on 
in  the  night,  which  is  the  offence  of  carrying  wool  or 
sheep  out  of  this  kingdom,  to  the  detriment  of  its  staple 
manufacture." 

2.  Smuggling. 

3.  Fraudulent  bankruptcies. 

4.  Usury. 

5.  Cheating. 

Thereafter  he  gives  forestalling,  regrating,  engrossing, 
and  other  offences  enumerated  in  the  following  extract, 
which  it  will  be  well  to  quote  t)er'batim{a). 

"  G.  The  offence  of  forestalling  the  market  is  also  an  offence 
against  public  trade.  This,  which  (as  well  as  the  two  following)  is 
also  an  offence  at  common  law,  was  described  by  statute  5  &  6  Edw.  VI. 
c.  14  to  be  the  buying  or  contracting  for  any  merchandise  or  victual 
coming  in  the  way  to  market  ;  or  dissuading  persons  from  bringing 
their  goods  oj*  provisions  there  ;  or  persuading  them  to  enhance  the 
price,  when  there  :  any  of  which  practices  make  the  market  dearer 
to  the  fair  trader. 

"  7.  Regrating  was  described  by  the  same  statute  to  be  the  buy- 
ing of  corn,  or  other  dead  victual,  in  any  market,  and  selling  it  again 
in  the  same  market,  or  within  four  miles  of  the  place.  For  this  also 
enhances  the  price  of  the  provisions,  as  every  successive  seller  must 
have  a  successive  profit. 

(«)  4  Blackstone,  Com.,  158-160. 


92  AMERICAN   LAW   AS   TO 

"  8.  Engrossing  was  also  described  to  be  the  getting  into  one's 
possession,  or  buying  up,  large  quantities  of  corn,  or  other  dead 
victuals,  with  intent  to  sell  them  again.  This  7nust  of  course  be  inju- 
rious to  the  j)ublic,  by  putting  it  in  the  power  of  one  or  two  rich  men 
to  raise  the  price  of  provisions  at  their  own  discretion.  And  so  the 
total  engrossing  of  any  other  commodity,  with  an  intent  to  sell  it  at  an 
unreasonable  price,  is  an  offence  indictable  and  fineable  at  the  com- 
mon law.  And  the  general  penalty  for  these  three  offences  by  the 
common  law  (for  all  the  statutes  concerning  them  luere  repealed  by 
V2  Geo.  III.  c.  71)  [a)  is,  as  in  other  minute  misdemeanors,  discre- 
tionary fine  and  imprisonment.  Among  the  Romans  these  offences 
and  other  mal-practices  to  raise  the  price  of  provisions,  were  pun- 
ished by  a  pecuniar}'  mulct.  '  Poena  viginti  aureorum  slatuitur  ad- 
versus  cum,  qui  contra  annonam  fecerit,  societatemve  coierit  quo 
annona  carior  fiat.' 

"  9.  Monopolies  are  much  the  same  offence  in  other  branches  of 
trade,  that  engrossing  is  in  provisions  :  being  a  licence  or  privilege 
allowed  by  the  king  for  the  sole  buj'ing  and  selling,  making,  work- 
ing, or  using  of  anything  whatsoever  ;  whereby  the  subject  in  gen- 
eral is  restrained  from  that  liberty  of  manufacturing  or  tracing  which 
he  had  before.  These  had  been  carried  to  an  enormous  height 
during  the  reign  of  queen  Elizabeth  ;  and  were  heavily  complained 
of  by  sir  Edward  Coke,  in  the  beginning  of  the  reign  of  king  James 
the  First  :  but  were  in  great  measure  remedied  by  statute  21  Jac, 
I.  c,  3,  which  declares  such  monopolies  to  be  contrary  to  law  and 
void  (except  as  to  patents,  not  exceeding  the  grant  of  fourteen  years, 
to  the  authors  of  new  inventions  ;  and  except  also  patents  concern- 
ing printing,  saltpetre,  gunpowder,  great  ordnance,  and  shot)  ;  and 
monopolists  are  punished  with  the  forfeiture  of  treble  damages  and 
double  costs,  to  those  whom  they  attempt  to  disturb  ;  and  if  they 
procure  any  action,  brought  against  them  for  these  damages,  to  be 
stayed  by  an  extra-judicial  order,  other  than  of  the  court  wherein  it 
is  brought,  they  incur  the  penalties  of  praemunire.  Combinations 
also  among  victuallers  or  artificers,  to  raise  the  price  of  provisions,  or 
any  commodities,  or  the  rate  of  labour,  are  in  many  cases  severely 
punished  by  particular  statutes  ;  and  in  general  by  statute  2  &  3 
Edw.  VI.  c.  15  with  the  forfeiture  of  \0l.  or  twenty  days'  imprison- 
ment, with  an  allowance  of  only  bread  and  water  for  the  first  offence  ; 

(«)  This  was  a.d.  1773. 


PRIVATE   EMPLOYMENTS.  93 

20/.  or  the  pillory,  for  the  second  ;  and  40/.  for  the  third,  or  else 
the  pillory,  loss  of  one  ear,  and  perpetual  infamy.  In  the  same 
manner,  by  a  constitution  of  the  emperor  Zeno,  all  monopolies  and 
combinations  to  keep  up  the  price  of  merchandise,  provisions,  or 
workmanship,  were  prohibited  upon  pain  of  forfeiture  of  goods  and 
perpetual  banishment. 

"  10.  To  exercise  a  trade  in  any  town,  without  having  previously 
served  as  an  apprentice  for  seven  years,  is  looked  upon  to  be  detri- 
mental to  public  trade,  upon  the  supposed  want  of  suflicient  skill  in 
the  trader  :  and  therefore  is  punished  by  statute  5  h]liz.  c.  4  with 
the  forfeiture  of  forty  shillings  by  the  month. 

"11.  Lastly,  to  prevent  the  destruction  of  our  home  manufactures 
by  transporting  and  seducing  our  artists  to  settle  abroad,  it  is  pro- 
vided by  statute  5  Geo.  I.  c.  27  that  such  as  so  entice  or  seduce  them 
shall  be  fined  100/.  and  be  imprisoned  three  months  :  and  for  the 
second  offence  shall  be  fined  at  discretion,  and  be  imprisoned  a  year  : 
and  the  artificers,  so  going  into  foreign  countries,  and  not  returning 
within  six  months  after  warning  given  them  by  the  British  ambas- 
sador where  they  reside,  shall  be  deemed  aliens,  and  forfeit  all  their 
land  and  goods,  and  shall  be  incapable  of  any  legacy  or  gift.  By 
statute  23  Geo.  11.  c.  13  the  seducers  incur,  for  the  first  offence,  a 
forfeiture  of  500/.  for  each  artificer  contracted  with  to  be  sent  abroad, 
and  imprisonment  for  twelve  months  ;  and  for  the  second,  1000/. 
and  are  liable  to  two  years'  imprisonment  ;  and  by  the  same  statute, 
connected  with  14  Geo.  III.  c.  71  if  any  person  exports  any  tools  or 
utensils  used  in  the  silk,  linen,  cotton,  or  woollen  manufactures  (ex- 
cepting woolcards  to  Xorth  xVmerica),  he  forfeits  the  same  and  200/., 
and  the  captain  of  the  ship  (having  knowledge  thereof)  100/.  ;  and 
if  any  captain  of  a  king's  ship,  or  officer  of  the  customs,  knowingly 
suffers  such  exportation,  he  forfeits  100/.  and  his  employment  ;  and 
is  forever  made  incapable  of  bearing  any  public  olfice  :  and  every 
person  collecting  such  tools  or  utensils,  in  order  to  export  the  same, 
shall,  on  conviction  at  the  assises,  forfeit  such  tools  and  also  200/." 

Here  we  get  additional  liglit.  The  view  of  the  law  taken 
by  Blackstone  was  this  : 

1.  Forestalling,  regrating,  engrossing,  and  monopolies, 
so  far  as  concerns  the  matter  here  under  consideration, 
were  the  only  "acts  injurious  to  trade  and  commerce" 
which  then  constituted  crimes. 


94  AMERICAT?^   LAW   AS   TO 

2.  The  legal  injury  involved  in  those  crimes,  whether 
to  any  other  individual,  or  to  the  community,  consisted 
in  "  enhancing  prices." 

3.  The  offence  of  "  enhancing  prices"  was  the  same, 
whether  committed  by  an  individual  or  a  combination. 

4.  Mere  "combinations"  to  raise  prices  were  criminal 
only  under  "  particular  statutes." 

Under  those  statutes,  then,  the  only  "offences  against 
public  trade,"  which  concern  us,  were  the  four  above 
named,  "forestalling,"  "  regrating,"  "engrossing,"  and 
"  monopolies." 

Let  us  see  wher^  we  find  ourselves  at  our  next  step. 

One  of  these  offences,  that  termed  a  "monopoly,"  is 
easily  eliminated,  that  is,  if  legal  terms  are  to  be  used 
v>7ith  any  degree  of  accuracy.  ,  It  is  here  especially  to 
be  noted,  that  combinations  to  raise  prices  are  by  Black- 
stone  classified  under  the  heading  of  "monopolies." 
Moreover,  it  is  from  that  point  of  view  that  such  com- 
binations have  been  considered  in  recent  opinions  of  our 
own  courts  ;  and  it  is  their  tendency  to  create  "  monopo- 
lies," that  these  courts  have  considered  to  be  the  chief 
danger  of  these  combinations. 

But  if  legal  terms  are  to  be  used  with  any  accuracy,  it 
must  be  said,  with  all  possible  deference  to  Sir  William 
Blackstone,  that  combinations  which  have  for  their  pur- 
pose only  the  raising  of  the  prices  of  the  property  of  the 
X)arties  combining,  or  the  preventing  of  competition 
among  the  parties  combining,  have  no  connection  what- 
ever with  "  monopolies,"  or  the  law  relating  thereto.  A 
"  monopoly"  under  the  English  law,  according  to  Black- 
stone's  own  definition  just  quoted,  which  is  in  accordance 
with  the  authorities,  was  "  a  licence  or  x>rivilege  allowed 
hy  the  king  for  the  sole  buying  and  selling,  making, 
working,  or  using  of  anything  whatsoever  ;  whereby  the 
subject  in  general  is  restrained  from  that  liberty  of 
manufacturing  or  trading  which  he  had  before." 

As  to  "monopolies,"  therefore,  these  points  are 
plain  : 


PRIVATE   EMPLOYMENTS.  95 

1.  They  were  grants  "by  the  king" — that  is,  by  due 
authority  of  law. 

2.  They  were  exclusive ;  and  barred  all  other  subjects 
than  their  grantee  from  the  right  of  selling  or  manufac- 
turing. 

3.  They  never  became  unlawful,  in  any  sense,  till  the 
statute  21  Jac.  1.  c.  3,  which  provided  simply  that  some 
monopolies,  under  grant  of  the  sovereign  alone,  were 
"  unlawful  and  void  ;"  and  which,  so  far  as  I  am  aware, 
for  the  first  time  visited  their  holders  with  a  penalty, 
and  then  only  in  case  of  any  attempt  by  those  holders  to 
disturb  others  in  the  exercise  of  their  lawful  rights. 

It  is  easily  apparent,  from  the  foregoing  statement, 
that  a  mere  combination  to  raise  prices  of  the  property  of 
the  parties  combining  lacks  all  the  essential  features  of  a 
"  monopoly."  Those  parties  have  no  exclusive  "  license 
or  privilege."  They  have  no  license  or  privilege  of  any 
kind.  All  other  citizens  retain  the  same  right,  and  the 
same  x^ower,  of  manufacturing,  buying,  and  selling,  with 
the  parties  combining.  A  "•  monopoly,"  too,  was  lawful. 
Unless  it  was  lawful,  it  had  no  existence.  The  stigma- 
tizing such  combinations  as  "  monox^olies, ''  therefore,  in- 
volves extreme  looseness  of  thought  and  language. 

The  position,  then,  which  we  have  now  reached  is  this  : 

1.  Under  the  English  law  there  was  a  well-delined  class 
of  "  Offences  against  Public  Trade." 

2.  Those  offences,  so  far  as  they  concern  us  here,  were 
forestalling,  regrating,  engrossing,  and,  to  use  the  term 
in  a  loose,  popular  sense,  ''monopolies." 

3.  Combinations  to  raise  prices,  though  mentioned  by 
Blackstone  under  the  heading  of  "monopolies,"  had 
nothing  of  the  "  monopoly"  in  their  real  legal  nature. 

4.  All  four  of  these  offences  were  statutorJ^ 

We  come  next  to  a  question  which  lies  at  the  bottom  of 
the  entire  situation.  It  is  this  :  Did  the  English  statutes 
which  created  these  "Offences  against  Public  Trade," 
ever  become  part  of  the  body  of  our  American  law  \ 

The  weight  of  authority  in  this  country  is  overwhelm- 


96  AMEEICAN   LAW   AS   TO 

ing,  that  the  ancient  English  statutes  which  established 
prices,  and  which  made  crimes  of  mere  efforts  to  enhance 
prices,  never  formed  part  of  onr  law.  As  to  this  point 
let  me  first  give  an  extract  from  the  opinion  of  Chief 
Justice  Shaw  in  Commonioealih  v.  Hunt{a).     It  reads  : 

"  We  have  no  doubt,  that  by  the  operation  of  the  constitution  of 
this  Commonwealth,  the  general  rules  of  the  common  law,  making 
conspiracy  an  indictable  offence,  are  in  force  here,  and  that  this  is 
included  in  the  description  of  laws  which  had,  before  tlie  adoption 
of  the  constitution,  been  used  and  approved  in  the  Province,  Colony, 
or  Stale  of  Massachusetts  Bay,  and  usually  practised  in  the  courts 
of  law.  Const,  of  Mass.  c.  VI.  §  6,  It  was  so  held  in  Common- 
v)ealth  V.  Boynton,  and  Commonwealth  v.  P'lerpont,  cases  decided 
before  reports  of  cases  were  regularly  published,*  and  in  many  cases 
since.  Commonwealth  v.  Ward,  1  Mass.  473  ;  Commonioealth  v. 
Jndd,  and  Commonwealth  v.  Tibhetts,  2  Mass,  329,  536  ;  Common- 
v)eaUh  v.  Warren,  6  Mass.  '74.  Still,  it  is  proper  in  this  connexion 
to  remark,  that  although  the  common  law  in  regard  to  conspiracy  in 
this  Commonwealth  is  in  force,  yet  it  will  not  necessarily  follow  that 
every  indictment  at  common  law  for  this  offence  is  a  precedent  for  a 
similar  indictment  in  this  state.  The  general  rule  of  the  common 
law  is,  that  it  is  a  criminal  and  indictable  offence,  for  two  or  more 
to  confederate  and  combine  together,  by  concerted  means,  to  do  that 
which  is  unlawful  or  criminal,  to  the  injury  of  the  public,  or  por- 
tions or  classes  of  the  community,  or  even  to  the  rights  of  an  indi- 
vidual. This  rule  of  law  may  be  equally  in  force  as  a  rule  of  the 
common  law,  in  England  and  in  this  Commonwealth  ;  and  yet  it 
must  depend  upon  the  local  laws  of  each  country  to  determine, 
whether  the  purpose  to  be  accomplished  by  the  combination,  or  the 
concerted  means  of  accomplishing  it,  be  unlawful  or  criminal  in  the 
respective  countries.  All  those  laws  of  the  parent  covAitry,  whether 
rules  of  the  common  law,  or  early  English  statutes,  which  were  made 
for  the  purpose  of  regulating  the  wages  of  laborers,  the  settlement 
of  2)aupers,  and  making  it  penal  for  any  one  to  use  a  trade  or  handi- 
craft to  which  he  had  not  served  a  full  apprenticeship — not  being 
adapted  to  the  circumstances  of  our  colonial  condition — were  not  adopt- 


(a)  Cummomoealth  v.  Hunt,  4  Metcalf,  111,  p.  121. 

*  bee  a  statement  of  these  cases  in  3  Law  Reporter,  295,  296. 


PRIVATE   EMPLOYMENTS.  97 

ed,  used  or  approved,  and  therefore  do  not  come  within  the  description 
of  the  laws  adopted  and  confirmed  by  the  provision  of  the  constitution 
already  cited.  This  consideration  will  do  something  towards  recon- 
ciling the  English  and  American  cases,  and  may  indicate  how  far  the 
principles  of  the  English  cases  will  apply  in  this  Commonwealth,  and 
show  why  a  conviction  in  England,  in  many  cases,  would  not  be  a 
precedent  for  a  like  conviction  here.  The  King  v.  Journeymen 
Tailors  of  Cambridge,  8  Mod.  10,  for  instance,  is  commonly  cited  as 
an  authority  for  an  indictment  at  common  law,  and  a  conviction  of 
journeymen  mechanics  of  a  conspiracy  to  raise  their  wages.  It  was 
there  held,  that  the  indictment  need  not  conclude  contra  formam 
statuti,  because  the  gist  of  the  offence  was  the  conspiracy,  which  was 
an  offence  at  common  law.  At  the  same  time  it  was  conceded,  that 
the  unlawful  object  to  be  accomplished  was  the  raising  of  loages  above 
the  rate  fixed  by  a  general  act  of  parliament.  It  was  therefore  a  con- 
spiracy to  violate  a  general  statute  law,  made  for  the  regulation  of  a 
large  branch  of  trade,  affecting  the  comfort  and  interest  of  the  pub- 
lic ;  and  thus  the  object  to  be  accomjdished  by  the  consjiiracy  was  un- 
lauful,  if  not  criminal,'''' 

Judge  Gibson,  of  Pennsylvania,  in  Commonioealth  v. 
Carlisle{a),  uses  this  language  : 

"  There  are,  indeed,  a  variety  of  British  precedents  of  indictments 
against  journeymen  for  combining  to  raise  their  wages,  and  prece- 
dents rank  next  to  decisions  as  evidence  of  the  law  ;  but  it  has  been 
thought  sound  policy  in  England  to  put  this  class  of  the  community 
under  restrictions  so  severe,  by  statutes  that  never  loere  extended  to 
this  country,  that  we  ought  to  pause  before  we  adopt  their  law  of 
conspiracy,  as  respects  artisans,  which  may  be  said  to  have,  in  some 
measure,  indirectly  received  its  form  from  the  pressure  of  positive  en- 
actment, and  which,  therefore,  may  be  enlirely  unfitted  to  the  con- 
dition and  habits  of  the  same  class  here." 

Mr.  Bishop  says(^) : 

"  Whatever  the  language  of  some- of  the  old  cases,  no  lawyer  of 
the  present  day  would  hold  it  indictable  for  men  simply  to  associate 
to  promote  their  own  interests  or  specifically  to  7-aise  their  imges.  .  .  . 
Or  if  employers  should  combine  simply  to  reduce  wages,  not  proposing 

(a)  Brightly,  36.  {b)  2  Bishop  Crim.  Law,  §  333. 


98  AMERICAff   LAW   AS   TO 

any  unlawful  means,  perhaps  we  might  not  so  much  commend  them, 
yet  still  they  would  stand  under  no  disfavor  from  the  lavj.  The  re- 
sult of  which  is  that  a  conspiracy  to  enhance  or  reduce  wages  is  not  in- 
dictable per  se,  while  yet  it  may  be  so  by  reason  of  proposed  unlaw- 
ful means.' ^ 

While  some  parts  of  the  English  criminal  law  beyond 
doubt  formed  part  of  the  criminal  law  of  the  English  col- 
onies, yet  the  repeal  of  the  statutes  as  to  forestalling, 
regrating,  and  engrossing,  took  place  before  the  separation 
of  the  colonies  from  the  mother  country  ;  and  there  is  no 
indication,  so  far  as  I  am  aware,  that  the  crimes  of  fore- 
stalling, engrossing,  and  regrating  ever  existed  on  this 
side  of  tile  water,  excej^t  under  certain  special  statutes, 
which  are  next  to  be  mentioned. 

For  we  have  had  our  own  separate  experience  in  at- 
tempts to  regulate  prices  by  statute,  of  the  same  nature, 
and  with  the  same  results,  as  in  England,  although  the 
results  with  us  were  reached  much  more  quickly,  and 
were  followed  more  quickly  by  the  repeal  of  the  obnox- 
ious and  pernicious  legislation. 

Our  attempts  of  this  character  were  made  during  the 
Revolutionary  War,  at  the  time  when  great  financial 
distress  had  ensued  from  the  issue  of  large  quantities  of 
paper  currency.  Naturally  there  was  a  great  rise  in  jDrices, 
of  both  labor  and  merchandise.  At  once,  by  concerted  ac- 
tion, attempts  were  made,  especially  in  the  New  England 
States  and  in  New  York,  to  control  prices  by  statute. 
The  Journals  of  Congress,  under  the  date  of  November 
22d,  1777,  contain  the  following  resolution  : 

"  To  maintain  our  fleets  and  armies,  large  sums  have  been  emitted 
in  bills  of  credit,  and.  the  same  method  has  been  embraced  by  the 
respective  states  to  answer  their  internal  wants.  By  these  expedi- 
ents, our  paper  currency,  notwithstanding  the  solid  basis  on  which 
it  is  founded,  is  multiplied  beyond  the  rules  of  good  policy.  No 
truth  being  more  evident,  than  that  where  the  quantity  of  money 
of  any  denommation  exceeds  what  is  useful  as  a  medium  of  com- 
merce, its  comparative  value  must   be  proportionably  reduced.     To 


PRIVATE   EMPLOYMENTS.  99 

this  cause,  conspiring  with  the  arts  of  onr  open  and  secret  enemies, 
the  shameful  avidity  of  too  many  of  our  professed  friends  and  the 
scarcity  of  foreign  commodities  are  we  to  ascribe  the  depreciation  of 
our  currency  :  the  consequences  to  be  appreliended  are  equally 
obvious  and  alarming.  They  tend  to  the  depravity  of  morals,  the 
decay  of  public  virtue,  a  precarious  supply  for  the  war,  debasement 
of  the  public  faith,  injustice  to  individuals,  and  the  destruction  of 
the  honour,  safety  and  independence  of  the  United  States.  Loudly, 
therefore,  are  we  called  on  to  provide  a  reasonable  and  effectual 
remedy." 

The  resolutions  thereupon  proceeded  to  recommend  to 
the  different  States  : 

1.  The  raising  of  five  million  dollars  by  taxes. 

2.  The  refraining  from  the  emission  of  further  bills  of 
credit,  and  the  withdrawal  of  part  of  those  already 
emitted. 

3.  Effectual  provisions  for  the  administration  of  justice. 

4.  The  raising  of  money  by  loan. 

5.  The  appointment  of  commissioners  from  the  different 
States  to  convene  "  in  order  to  regulate  and  ascertain  the 
price  of  labour^  manufactures,  internal  produce,  and 
commodities  imported  from  for  eign  parts ,  military  stores 
excepted,  and  also  to  regrdate  the  charges  of  inn-holders  : 
and  that  on  the  report  of  the  commissioners,  each  of  the 
respective  legislatures  enact  suitable  laws,  as  well  for  en- 
forcing the  observance  of  such  of  the  regulations  as  they 
shall  ratify,  and  enabling  such  inn-holders  to  obtain  the 
necessary  supplies,  as  to  authorise  the  purchasing  com- 
missaries for  the  army  or  any  other  person  whom  the 
legislatures  may  think  proper,  to  take  from  any  en- 
grossers, forestallers  or  other  person  possessed  of  a 
larger  quantity  of  any  such  commodities  or  provisions 
than  sliall  be  competent  for  the  private  annual  consump- 
tion of  their  families,  and  who  shall  refuse  to  sell  the 
surplus  at  t\ie  prices  to  he  ascertained  as  aforesaid,  pay- 
ing only  such  price  for  the  same. 

•'  6.  And  in  order  to  introduce  immediate  economy  in 
the  public  expense,  the  spirit  of  sharping  and  extortion, 


100  AMERICAN   LAW   AS   TO 

and  the  rapid  and  excessive  rise  of  every  commodity  being 
confined  within  no  bounds  ;  and  considering  how  much 
time  must  unavoidably  elapse  before  the  plan  directed  by 
the  foregoing  resolution  can  be  carried  into  effect, 

' '  BesolTed,  That  it  be  earnestly  recommended  to  the 
resjiective  legislatures  of  the  United  States,  without  de- 
lay, by  their  separate  authority,  to  adopt  and  efi'ectilally 
enforce  a  temporary  regulation  of  the  prices  of  provisions 
and  other  commodities  for  the  supply  of  the  army,  in 
such  manner  as  they  shall  judge  reasonable  ;  and  to  con- 
tinue in  force  until  the  general  regulation  before  pro- 
posed shall  be  adopted." 

Pursuant  to  these  resolutions  we  find  an  act  passed  by 
the  legislature  of  the  State  of  New  York  on  April  3d, 
1778,  Chap.  34,  entitled  "  An  Act  to  regulate  the  wages 
of  mechanicks  and  labourers,  t\\Q  prices  oi  goods  and  cotti- 
modities  and  the  charges  of  inn-holders  within  this  State, 
and  for  other  purposes  therein  mentioned." 

That  act  recited  the  Resolutions  of  Congress  of  Novem- 
ber 22d,  1777,  and  proceeded  to  fix  the  wages  of  farmers, 
mechanics  and  teamsters,  the  prices  of  American  manu  • 
factures,  of  hemp  and  wool,  of  European  goods,  woolen 
cloths,  rum,  sugar,  and  other  commodities.  It  also  pur- 
ported to  fix  profits,  of  traders,  retailers,  and  vendors, 
and  of  transactions  in  many  classes  of  merchandise. 

Its  last  section  read  :  "  And  be  it  further  enacted  .  .  . 
That  this  law,  unless  sooner  repealed  by  the  legislature 
of  this  State,  shall  be  and  continue  in  full  force  and  effect 
during  the  present  war  between  the  United  States  of 
America  and  Great  Britain  and  no  longer.^'' 

This  Neio  York  statute  was  repealed  in  the  same  year 
with  its  passage. 

A  similar  experience  was  had  in  the  New  England 
States,  which  had  united  for  common  action  almost  a  year 
earlier,  of  their  own  motion.  On  December  25th,  1776, 
a  meeting  was  held  at  Providence,  R.  I.,  of  a  committee 
composed  of  delegates  from  New  Hampshire,  Massachu- 
setts, Rhode  Island,  and  Connecticut,  for  the  purpose  of 


PRIVATE   EMPLOYMENTS.  101 

securing  common  concerted  action  in  relation  to  the  cur- 
rency, and  the  high  prices  for  labor  and  mercliandise. 
The  deliberations  of  this  meeting  resulted  in  the  x)assage 
on  December  31st,  1776,  of  certain  recommendations  as 
to  prices.  These  recommendations  began  with  the  fol- 
lowing recital : 

"This  Committee  taking  into  consideration  the  unbounded 
Avarice  of  many  Persons,  by  daily  adding  to  the  now  most  intoler- 
able exorbitant  Price  of  every  necessary  and  Convenient  Article  of 
Life,  and  also  the  most  extravagant  Prices  of  Labour  in  General, 
which  at  this  time  of  Distress,  unless  a  speedy  and  effectual  stop 
be  put  thereto  will  be  attended  with  the  most  Fatal  and  Pernicious 
Consequences.  As  it  not  only  Disheartens  and  Disaffects  the  Soldiers 
who  have  nobly  entered  into  Service,  for  the  Best  of  causes,  by 
obliging  them  to  give  such  unreasonable  Prices  for  those  Things 
that  are  absolutely  needful  for  their  very  existence,  that  their  pay  is 
not  sufficient  to  subsist  them  ;  but  is  also  very  Detrimental  to  the 
Country  in  General. 

"  Wherefore  it  is  recommended  by  this  Committee  that  the  Rates 
and  Prices  hereafter  enumerated  be  affixed  and  settled  within  the 
Respective  States  in  New  England,  to  wit,   ,   .   ." 

Then  follows  a  long  schedule  of  prices,  both  of  labor 
and  merchandise. 

The  committee  also  recommended  the  passage  of  Acts 
containing  many  other  provisions,  which  need  not  here 
be  enumerated,  inasmuch  as  the  more  important  of  them 
may  be  ascertained  from  the  statement  hereafter  given  of 
the  legislation  actually  had,  upon  the  committee's  recom- 
mendation, in  the  State  of  Massachusetts. 

In  Massachusetts,  on  January  25th,  1777,  there  was 
passed  a  statute,  Chap.  14,  entitled  "  An  Act  to  prevent 
Monopoly  and  Oppression."  It  began  with  the  follow- 
ing recital : 

"  Whereas  the  avaritious  conduct  of  many  persons,  by  daily  add- 
ing to  the  now  exorbitant  price  of  every  necessary  and  convenient 
article  of  life  and  encreasing  the  price  of  labour  in  general,  unless  a 
speedy  and  effectual  stop  be  put  thereto,  will  be  attended  with  the 


102  AMERICAN   LAW   AS   TO 

most  fatal  and  pernicious  consequences,  as  it  not  only  disheartens 
and  disaflfects  the  soldiers  who  have  nobly  entered  into  the  service  of 
their  country  for  the  support  of  the  best  of  causes,  and  distresses  the 
poorer  part  of  the  community  by  obliging  them  to  give  unreasonable 
prices  for  those  things  that  are  absolutely  necessary  to  their  very 
existence,  but  will  be  also  very  injurious  to  the  state  in  general  ; 
and  whereas  the  Committee  lately  empowered  by  this  state  to  pro- 
ceed to  Providence  in  Rhode  Island,  and  in  behalf  of  this  state  there 
to  meet  with  committees  from  the  other  New  England  States,  and 
among  other  things  to  confer  upon  measures  necessary  to  2)revent 
monopoly,  and  the  high  price  of  goods  and  the  necessaries  of  life, 
and  for  regulation  of  vendues,  have,  in  conjunction  with  the  said 
committees,  recommended  that  rates  and  prices  be  settled  and  affixed 
by  an  act  of  this  state  to  the  articles  hereinafter  enumerated." 

It  then  proceeded  : 

"  Be  it  therefore  enacted  by  the  Council  and  House  of  Represent- 
atives in  General  Court  assembled,  and  by  the  authority  of  the  same, 

*'  (Sect.  1.)  That  from  and  after  the  twenty-eighth  day  of  Jan- 
uary, one  thousand  seven  hundred  and  seventy-seven,  the  price  of 
farming  labour,  in  the  summer  season,  shall  not  exceed  three  shil- 
lings by  the  day,  and  found,  as  usual,  and  so  in  usual  proportion  at 
other  seasons  in  the  year  ;  and  the  labour  of  mechanics  and  trades- 
men, and  other  labour  beside  what  is  herein  hereafter  especially 
enumerated,  in  proportion  thereunto,  according  to  the  usages  and 
customs  whicli  have  heretofore  been  adopted  and  practiced  in  this 
state,  when  compared  with  farming  labour. 

"  And  be  it  further  enacted  by  the  authority  aforesaid, 

"  (Sect.  2.)  That  the  following  articles  shall  not  be  sold  for  a 
higher  price  than  is  herein  hereafter  settled  and  affixed  to  them  re- 
spectively ;  viz.,  good  merchantable  wheat,  at  seven  shillings  and 
six  pence  per  bushel  ;  good  merchantable  rye  or  rye-meal,  at  five 
shillings  a  bushel  ;"  proceeding  thereafter  to  fix  in  the  same  manner 
the  prices  of  other  grains,  salt,  West  India  rum,  New  England  rum, 
sugar,  molasses,  shoes,  beef,  cotton,  tow-cloth,  flannel,  wood,  leather, 
cloth,  flour,  horse  keeping,  teaming  work,  and  many  other  articles 
of  merchandise. 

Section  3  provided 

"  That  ilia  p)-ices  of  all  the  articles  produced  in  America  hereinbe- 


PRIVATE   EMPLOYMENTS.  ]  03 

fore  enumerated,  excepting  those  to  which  the  prices  of  transporta- 
tion are  affixed,  shall  he  taken  and  deemzd  to  be  the  prices  of  such 
goods  and  articles  in  the  town  of  Boston  ;  and  that  the  selectmen  and 
the  committees  of  the  several  towns  in  this  state  shall  be  and  hereby 
are  impowered  to  affix  and  settle  in  their  respective  towns  ivhat  such 
articles  and  goods  shall  be  sold  for  in  their  towns,  respectively,  ac- 
cording to  the  proportion  the  price  such  goods  have  borne  in  such 
towns  toith  the  price  they  have  been  at  in  the  town  of  Boston,  according 
to  the  ancient  usage  and  custom  of  such  towns." 

"  (Sect.  4.)  And  the  said  selectmen  and  committees  are  in  like 
manner  impowered  and  directed  to  set  and  establish  the  prices  of 
goods  herein  not  enumerated,  according  to  the  proportion  the  price 
of  them  have  usually  borne  in  their  respective  towns  to  those  herein 
enumerated.  And  the  said  selectmen  and  committees  are  also  re- 
quired to  make  out  a  fair  list  of  all  the  articles  to  which  tliey  shall 
affix  prices,  and  to  post  the  same,  with  the  prices  by  them  so  affixed, 
up,  in  some  public  place  or  places,  in  the  town  where  they  live,  and 
also  to  return  a  list  of  such  prices  to  the  clerk  of  such  town,  there 
to  remain  upon  record  ;  and  such  prices  by  them  affixed,  pursuant 
to  the  duty  herein  enjoined  and  power  hereby  given  them,  shall  be 
taken  and  deemed  to  be  the  price  set  and  affixed  by  this  Act  in  such 
town." 

Section  6  then  provided  that  the  jDiice  of  all  goods  and 
merchandise  imported  into  the  State  should 

"  Not  exceed  the  following  rates  ;  woolen  goods,  coarse  linens, 
duck,  cordage  .  .  .  shall  not  be  sold,  by  wholesale,  at  a  higher  rate 
than  in  the  proportion  of  two  hundred  and  seventy-five  pounds  ster- 
ling for  what  usually  cost  one  hundred  pounds  sterling  in  that  part 
of  Europe  from  whence  they  are  imported  (with  similar  provisions 
for  other  classes  of  merchandise),  .  .  .  and  the  seller  by  wholesale 
shall  make  out  a  bill  of  parcels  at  the  sterling  cost  of  the  articles 
sold,  with  his  advance  thereupon,  and  deliver  the  same  to  the 
bearer,  under  penalty  of  the  sum  at  wliich  such  articles  are  so  sold 
by  him  ;  and  the  retailers  of  such  goods,  wares  and  merchandise 
shall  not  sell  them  at  a  higher  advance  than  twenty  per  cent,  upon 
the  wholesale  price,  and  shall,  if  requested  by  the  buyer,  give  a  bill 
of  parcels,  with  the  sterling  cost  and  the  advance." 

Section  7  provided  that  persons  having  necessaries  for 


104  AMERICAN   LAW   AS   TO 

the  army  or  navy,  and  refusing  to  sell  them,  thereby  sub- 
jected their  stores  to  be  opened  by  warrant. 

Section  9  j^rescribed  penalties  for  selling  at  prices 
higher  than  those  fixed  by  the  act. 

Section  12  provided 

"  That  if  any  person  shall  engross,  or  have  in  his  possession,  by 
purchase  or  otherwise,  more  of  any  article  in  this  act  enumerated 
(or  any  other  necessary  of  life)  than  is  necessary  for  the  consumption 
of  his  own  family  and  immediate  dependants,  and  which  he  holds 
with  an  apparent  design,  in  the  judgment  of  the  major  part  of  the 
selectmen  of  the  town  where  he  lives  or  where  such  article  shall  be, 
to  sell,  trade  upon,  and  not  for  his  oxon  consumption  as  aforesaid,  and 
shall  refuse  to  sell  and  dispose  of  the  same  for  the  common  currency 
of  this  state  or  the  United  States  of  America,  and  at  the  prices  af- 
fixed and  settled  by  this  act  or  by  the  selectmen  and  committee  in  pur- 
suance of  it,  and  complaint  being  thereof  made  to  the  major  part  of 
said  selectmen  by  or  in  the  behalf  of  any  person  who  is  in  want  of 
such  article  or  articles  for  his  oion  immediate  support,  the  support 
of  his  family  or  immediate  dependants,  and  the  said  selectmen  or  the 
major  part  of  them  believing  the  same  to  be  true,  shall  demand  of 
such  person  so  refusing  to  sell  such  article  or  articles  for  such  price 
as  is  affixed  by  this  act,  or  by  the  selectmen  or  committee  in  pursu- 
ance of  it,  and  if  such  person  shall  refuse  to  comply  tlierewith,  or 
cannot  be  found  to  have  such  demand  made  of  him,  the  major  part 
of  said  selectmen  shall  apply  to  some  justice  of  the  peace  within  the 
same  county,  for  a  warrant  to  open  any  store,  warehouse  or  granary 
in  lohich  such  article  or  articles  may  be,  or  otherwise  to  take  posses- 
sion of  the  same. ' ' 

Section  13  prescribes  the  form  of  the  warrant  to  be 
issued,  which  authorized  the  sheriff  "  to  take  possession  of 
the  articles  in  question  and  deliver  them  to  the  selectmen 
to  the  intent  that  the  said  selectmen  may  sell  and  deliver 
to  the  said  N.  O.  the  aforesaid  (articles)  or  so  much  of 
that  article  as  the  said  N.  0.  has  absolute  necessity  for." 

Section  14  provided  "And  the  said  selectmen,  or  the 
major  part  of  them,  having  possession  of  such  article  or 
articles  in  manner  aforesaid,  shall  sell  and  deliver  to  such 
necessitous  pe7' son  so  named  in  such  warrant,  so  niuch 


PRIVATE   EMPLOYMENTS.  105 

of  tlie  article  tlierein  mentioned  as  Tie  stands  in  need  of 
for  the  support  of  Ms  family  and  Immediate  dependants^ 
at  til e  price  affixed  as  aforesaid^ 

This  Act  was  logical,  and  consistent.  Evidently,  if 
there  is  any  legal  obligation  resting  on  the  OAvner  of 
merchandise  to  sell  at  any  other  price  than  his  own, 
there  is  a  corresponding  legal  right  on  the  part  of  some 
other  person  or  persons  to  bny  at  that  price.  So  this 
Massachusetts  legislature  considered.  Therefore  they 
enacted,  that  not  only  should  the  owners  of  merchan- 
dise be  bound  to  sell  at  legislative  prices,  but  the  com- 
munity, or  any  of  its  members  in  need,  should  have  the 
right  to  buy  at  those  prices.  And  they  provided  the 
machinery  for  enforcing  this  right. 

This  measure,  however,  was  soon  found  to  be  ineffec- 
tual, as  similar  ones  had  been  found  in  England.  The 
consequence  was  the  passage  of  a  later  Act  (Province 
Laws,  1776-77,  Chap.  46),  entitled  "  An  Act  in  addition 
to,  and  for  amending  and  more  effectually  carrying  into 
execution,  an  Act  intitled  '  An  Act  to  prevent  Monopoly 
and  Oppression  '  made  in  the  present  year." 

"  Whereas  it  appears  that  the  prices  at  which  sundry  articles  are 
fixed  in  the  act  to  prevent  monopoly  and  oppression  are  not  adequate 
to  the  expence  which  will  hereafter  ivohahly  he  incurred  in  procuring 
such  articles, — 

"Be  it  therefore  enacted  by  the  Council  and  House  of  Represent- 
atives in  General  Court  assembled,  and  by  the  authority  of  the  same, 

"  (Sect.  1.)  T\\Ki\\\Q  selectmen  and  committees  of  correspondence  (kc. 
of  the  several  towns  in  this  state,  be,  and  they  are  hereby,  impow- 
cred  to  settle  and  affix,  in  their  respective  towns,  once  in  two  months, 
during  the  continuance  of  this  act,  the  price  of  farming  and  other 
labour,  the  price  at  which  poultry,  flour,  and  iron,  either  imported 
by  land  or  water  into  such  town,  or  manufactured  therein,  may  be 
sold  for,  having  respect  to  the  quality  of  such  tlour  and  iron  ;  and 
that  said  selectmen  and  committees  cause  the  prices  by  them  affixed 
and  settled  for  said  articles,  to  be  posted  up  in  some  public  place  or 
places  in  their  respective  towns,  and  six  days  at  least  before  such 
prices  are  to  take  effect  ;  and  that  the  price  of  the  several  kinds  of 


106  AMERICAN   LAW    AS   TO 

smith's  work  be  set  by  the  selectmen  and  committees  of  the  several 
towns  in  this  state,  as  the  price  affixed  by  them  to  iron  may,  in  their 
opinion,  make  it  necessary  ;  and  also  the  prices  beyond  which  inn- 
holders  may  not  exceed,  in  disposing  of  mixed  liquors  to  travellers 
and  others  in  their  respective  towns. 

"  And  be  it  farther  enacted, 

"  (Sect.  2.)  That  the  following  articles  be  hereafter  sold  at  the 
prices  following,  or  not  exceeding  such  prices  ;   viz. 

"  Fleece  wool,  at  two  shillings  and  two  pence  per  pound,"  followed 
by  an  enumeration  of  other  articles  with  their  prices,  among  which 
were  rye,  pork,  cocoa,  coffee,  cotton,  cotton  and  linen  cloth,  rum, 
molasses,  and  sugar. 

Section  3  then  provided 

"  That  when  any  store,  warehouse,  or  otlier  building  shall  be 
opened  by  warrant  from  a  justice  of  the  peace,  in  the  manner  pre- 
scribed in  the  act  to  which  this  act  is  made  in  addition,  or  dwelling- 
house,  or  other  building  and  apartment,  which  they  are  hereby,  in 
like  manner,  impowered  to  enter,  the  selectmen  may  not  only  sell  and 
dispose  to  the  necessitous  person  applying  therefor,  hut  to  all  others  tvho 
shall  ajypear  to  purchase,  by  retail  in  small  quantities  ;  and  also,  to 
innholders,  rum,  by  the  barrel,  and  to  bakers,  flour,  by  the  barrel, 
upon  the  day  of  executing  the  said  warrant,"  with  sundry  pi'ovisions 
then  following  for  the  protection  of  distillers  and  "  retailers  of  rum 
and  molasses." 

The  legislature  did,  however,  recognize  that  legislation 
of  this  kind  was  to  be  used  only  under  the  stress  of  ex- 
ceptional circumstances.  This  appears  from  the  language 
used  by  them  in  Section  4  of  this  act,  which  read  as  fol- 
lows : 

"  That  the  powers  and  authorities  by  the  last  preceding  paragraph 
granted  to  selectmen  and  committees,  can  only  be  justified  in  cases 
wherein  the  very  existence  of  the  community  is  depending  ;  and  must, 
whenever  adopted,  be,  in  its  nature,  short  and  temporary,  and  can- 
not, with  any  propriety  consistent  with  the  preservation  of  the  common 
rights  of  men,  be  adopted  but  only  in  cases  wherein  the  avarice  and 
wickedness  of  a  few  endanger  the  ruin  and  destruction  of  the  state  ; 
and  therefore  that  this  instance  shall  not,  at  any  time  hereafter,  be 
drawn,  into  j^i'^cedent,  excepting  in  cases  of  like  necessity/' 


PRIVATE   EMPLOYMENTS.  107 

In  other  words,  Inter  arma  silent  leges. 

By  this  time  the  difficulty  of  enforcing  any  laws  of 
this  character  had  evidently  begun  to  produce  some  effect 
on  the  minds  of  the  legislators,  for  they  proceeded  to 
provide  a  body  of  special  officials  who  were  to  attend  to 
the  enforcement  of  the  act.     By  section  8  it  was  provided, 

"  That  there  shall  be  elected,  some  time  on  or  before  the  last  day 
of  June  next,  in  each  town  and  plantation  within  this  State,  three, 
five,  or  seven  persons,  who  shall  be  under  oath  to  2^>''^secute  all 
breaches  of  this  act,  and  of  the  '  Act  for  preventing  monopoly  and 
oppression,'  which  shall  come  to  their  knowledge,  or  of  which  they 
shall  receive  information  .  .  .  and  any  person  chosen  into  said  office, 
and  refusing  to  serve  therein  .  ,  .  shall  forfeit  and  pay  the  sum  of 
Five  pounds  .  .  .  and  when  any  person  chosen  to  said  office  shall 
refuse  to  serve  therein,  the  town  to  which  he  belongs,  shall  choose 
some  other  person  in  his  place,  and  so  as  often  as  the  case  may  re- 
quire. ' ' 

The  difficulties  of  enforcing  any  such  act,  even  as  they 
had  already  become  apparent  to  the  members  of  that 
legislature,  were  so  great  as  to  lead  them  to  go  even  fur- 
ther, and  provide  (Sect.  11) 

"  That  no  execution  shall,  after  the  fifteenth  day  of  June  next,  be 
issued  from  the  office  of  any  clerk  of  any  inferior  court  of  common 
pleas,  or  of  the  superior  court  of  judicature  &c.,  for  any  sum  what- 
ever, unless  the  plaintifE  or  plamtiffs  sueing  in  his  or  their  own  right, 
and  dwelling  within  this  state,  shall  first  take  the  following  oath  ; 
viz..  You  A.  B.  do,  in  presence  of  God,  solemnly  declare,  that  you 
have  not,  since  the  fifteenth  day  of  June,  1777,  wittingly  and  will- 
ingly, directly  or  indirectly,  either  by  yourself,  or  any  by,  for,  or 
under  you,  been  concerned  in  selling  any  article  enumerated  in  the 
*  Act  to  prevent  monopoly  and  oppression  '  at  a  higher  price  than  is 
by  the  said  acts  limited  for  such  article,  or  by  the  selectmen  or  com- 
mittees in  pursuance  thereof.      So  help  you  God." 

This  Act  was  passed  May  10th,  1777. 

A  very  short  experience  under  these  two  acts  brought 
the  legislature  to  a  full  comprehension  of  the  situation, 
and  on  October  13th  of  the  same  year  both  acts  were  re- 


108  AMERICAN   LAW   AS   TO 

pealed,  by  a  very  short  statute  of  which  the  terms  are 
very  instructive.  It  was  Chap.  6  of  Province  Laws  1777- 
78,  entitled 

"  An  Act  for  the  repealing  two  acts  of  the  General 
Court  made  the  present  year  to  predent  Qiionopoly  and 
oppression.^'' 

"  Whereas  the  several  acts  to  prevent  monopoly  and  oppression 
made  the  present  year  have  been  very  far  from  answering  the  salutary 
2)ur poses  for  which  they  were  intended, — 

"  Be  it  therefore  enacted  by  the  Council  and  House  of  Representa- 
tives in  General  Court  assembled,  and  by  the  authority  of  the  same, 

"  That  the  aforesaid  acts  .  .  .  be,  and  they  are  hereby,  repealed, 
and  every  part  and  paragraph  of  each  of  the  acts  aforesaid  declared 
null  and  void." 

The  futility  of  acts  of  this  nature  is  made  further  ap- 
parent by  a  letter  from  Governor  Cooke  of  Rhode  Island 
of  May  14th,  1777,  part  of  which  is  as  follows  :  "  Sir  : 
The  Consequences  arising  from  the  not  carrying  into 
Execution  the  late  Acts  passed  by  the  several  Legislative 
Bodies  of  the  New  England  States  affixing  Prices  of 
Labor  and  Goods  enumerated,  are  too  obvious  to  need 
commenting  up>on. 

"  This  little  State  hath  exerted  itself  in  some  measure 
by  prosecuting  Persons  who  have  transgressed  that  Law  : 
but  in  vain  can  she  alone,  put  in  Execution  a  matter  uj)on 
which  so  much  depends.  The  Consequence  hath  been  an 
almost  intlre  stop  of  vending  the  necessary  Articles  of 
Life:' 

Tliereafter,  among  the  Massachusetts  statutes,  we  find 
"  An  Act  against  monopoly  2a\(\.  forestalling,''''  Chap.  31, 
Province  Laws  1778-79,  which  x>rovided  in  effect  that  no 
person  should  have  in  his  possession  grain  more  than 
sufficient  for  the  use  of  his  family  and  immediate  de- 
pendents until  the  next  harvest  time.  This  act  was 
passed  February  8th,  1779,  and  by  its  terms  was  limited 
to  be  in  force  only  until  the  next  twentieth  day  of  Octo- 
ber. Thereafter  it  was  renewed  for  two  periods  of  about 
one  year  each,  when  it  expired. 


PRIVATE   E:\rPLOYMENTS.  109 

The  lawyers  who  drafted  those  statutes  were  evidently 
cognizant  of  the  class  of  "  Offences  against  Public  Trade" 
mentioned  by  Blackstone,  that  is,  '"engrossing,'"  "fore- 
stalling," and  "monopolies."  Those  were  the  technical 
offences  which,  in  the  minds  of  the  lawyers  of  that  time, 
constituted  the  wrongs  done  to  the  community  by  per- 
sons engaged  in  raising  prices. 

This  review  of  these  old  statutes  brings  us  forward  one 
more  step.  Whereas  the  old  English  statutes  as  to  sun- 
dry "  Offences  against  Public  Trade"  did  not  form  part 
of  our  American  law,  on  the  other  hand,  there  were,  as 
we  have  seen,  in  several  of  the  States  a  number  of  early 
statutes,  creating  those  same  old  offences,  under  the  same 
old  names,  "engrossing,"  "forestalling,"  and  "monop- 
olies ;"  and  those  early  statutes  were  either  repealed,  or 
thereafter  became  obsolete.  I  have  been  able  to  find  no 
reported  case  in  the  reports  of  any  State  of  a  conviction 
for  either  of  those  "  Offences  against  Public  Trade,"  all 
of  which  consisted,  in  some  form,  in  an  attempt  to  "en- 
hance prices." 

This  was  the  situation  when  the  New  York  statute 
defining  the  offence  of  conspiracy  was  passed.  In  other 
States  the  situation  was  much  the  same  wiien  similar 
statutes  were  enacted.  So,  too,  it  was  with  what  may  be 
termed  the  conmion  law  of  the  United  States.  It  will  be 
sufficient  for  our  purpose,  if  we  follow,  with  a  slight  de- 
gree of  detail,  the  situation  as  it  developed  in  New  York. 

The  Revised  Statutes  of  the  State  of  New  York,  which 
went  into  effect  in  1830,  contained  the  following  defini- 
tion of  the  offence  of  consi)iracy  :{a) 

'*  §  8.   If  two  or  more  persons  shall  conspire,  either, 

"  1.  To  commit  any  offence  ;  or, 

"  2.  Falsely  and  maliciously  to  indict  another  for  any  offence,  or 
to  procure  another  to  be  charged  or  arrested  for  any  such  offence  ; 
or, 


(«)  3  N.  Y.  Rev.  Stat.  691. 


110  AMERICAN   LAW   AS   TO 

"  3.  Falsely  to  move  or  maintain  any  suit  ;  or, 

"4.  To  cheat  and  defraud  any  person  of  any  property  by  any 
means  which  are  in  themselves  criminal  ;  or, 

"5.  To  cheat  and  defraud  any  person  of  any  property  by  any 
means  which,  if  executed,  would  amount  to  a  cheat,  or  to  obtaining 
money  or  property  by  false  pretences  ;  or, 

"  6.  To  commit  any  act  injurious  to  the  public  health,  to  public 
morals  or  to  trade  or  commerce  ;  or  for  the  perversion  or  obstruction 
of  justice  or  the  due  administration  of  the  laws  ; 

"  They  shall  be  deemed  guilty  of  a  misdemeanor. 

"  §  9.  No  conspiracies,  other  than  such  as  are  enumerated,  are 
punishable  criminally." 

As  to  this  statute,  the  following  points  are  to  be  noted  : 

1.  The  offences  defined,  as  had  been  the  case  under  the 
common  law,  were  to  a  large  degree  connected  with  the 
administration  of  justice. 

2.  Those  offences  were  largely  combinations  to  commit 
acts  which  would  be  crimes,  if  committed  by  a  single 
individual. 

The  first  reported  case  of  any  importance  which  arose 
under  this  act  was  People  v.  Fls?ter.{a)  That  case  may 
be  said  to  have  been  the  primal  source  in  the  State  of 
New  York  of  most  of  the  heresies  as  to  combinations  to 
raise  prices,  of  either  labor  or  merchandise. 

It  is  well,  therefore,  to  see  precisely  what  this  case 
People  V.  Fisher  really  did  decide. 

Its  syllabus  reads  thus  : 

"  A  conspiracy  of  journeymen  workmen  of  any  trade  or  handi- 
craft to  raise  their  wages.,  by  entering  into  combinations  to  coerce  journey- 
men and  master  workmen  employed  in  the  same  trade  or  business,  to 
conform  to  rules  established  by  such  combination  for  the  purpose  of 
regulating  the  price  of  labor  and  carrying  such  rules  into  effect  by 
overt  acts,  is  indiclable  as  a  misdemeanor  ;  and  it  was  accordingly 
held,  where  journeymen  shoemakers  conspired  together  and  fixed  the 
price  of  making  coarse  bools,  and  entered  into  a  combination  that  if 
a  journeyman  shoemaker  should  make  such  boots  for  a  compensation 
below  the  rate  established,  he  should  pay  a  penalty  of  ten  dollars  ; 

(«)  14  Wendell,  9,  a.d.  1835. 


PRIVATE   EMPLOYMENTS.  Ill 

and  if  any  master  shoemaker  employed  a  journeyman  who  had  vio- 
lated tlieir  rules,  that  they  would  refuse  to  work  for  him,  and  would 
quit  his  employment,  and  carried  such  combination  into  effect  by  leav- 
ing the  employment  of  a  master  workman  in  whose  service  was  a  jour- 
neyman who  had  violated  their  rules,  and  thus  compelled  the  imistcr 
shoenuiker  to  discharf/e  such  jonrneynuin  from  his  employ — that  the 
parties  thus  conspiring  were  guilty  of  a  misdemeanor  and  punishable 
accordingly." 

The  first  count  of  the  indictment  charged  that  the  de- 
fendants conspired 

"  Xo  prevent  any  journeyman  hoot  and  shoemaker  in  the  villaye  of  Gen- 
eva from  working  in  his  trade  and  occupation  heloio  certain  rates  and 
prices  prescribed  by  the  defendants  and  their  confederates  to  the 
great  injury  of  the  trade  of  the  State  of  New  York." 

The  second  count,  after  stating  the  conspiracy,  charged 
that  the  defendants 

"  in  pursuance  thereof  did  promise  and  agree  to  and  among  them- 
selves, and  to  and  with  their  confederates,  that  neither  of  them  would 
he  employed  for  any  viaster  shoe)naker  who  should  thereafter  employ 
Thonuis  J.  Pennock,  a  journeyman  boot  and  shoemaker,  although 
Pennock  was  a  good  and  free  citizen  of  the  State,  and  a  good  and 
faithful  workman  ;"  that  Pennock's  employer  was  thereby  "  com- 
pelled  to  dismiss  and  did  dis)aiss  Pennock  from  his  employment  and 
service,  and  ever  since  declined  and  refused  to  employ  him  in  his 
trade  and  occupation  of  a  journeyman  shoemaker,  to  the  great  preju- 
dice of  Pennock  and  of  Quin,  to  the  obstruction  of  free  and  voluntary 
labor  in  the  business  of  boot  and  shoemaking  to  the  injury  of  trade." 

The  opinion  states  the  question  to  be  decided  thus  : 
"  The  question  therefore  is,  is  a  conspiracy  to  raise  the 
wages  of  journeymen  shoemakers  an  act  injurious  to 
trade  and  commerce  V^  This  question  is  answered  in  the 
affirmative.  But  other  passages  in  the  opinion  make  it 
clear  that  this  affirmative  answer  must  be  taken  with 
limitations  made  necessary  by  the  special  facts  of  the 
case.  Those  limitations  are  apparent  from  the  following 
extract : 


112  AMERICAN   LAW   AS   TO 

"  The  man  who  owns  an  article  of  trade  or  commerce  is  not  ohliyed 
to  sell  it  for  any  particular  price ^  nor  is  the  mechanic  obliged  by  law  to 
laf)or  for  any  particular  price.  He  may  say  that  he  will  not  make 
coarse  boots  for  less  than  one  dollar  per  pair,  but  he  has  no  right  to 
say  that  no  other  mechanic  shall  make  them  for  less.  The  cloth  mer- 
chant may  say  that  he  will  not  sell  his  goods  for  less  than  so  much 
per  yard,  but  has  no  right  to  say  that  any  other  merchant  shall  not  sell 
for  a  less  jyt'ice.  If  one  individual  does  not  jiossess  such  a  right  over 
the  conduct  of  another,  no  number  of  individuals  can  2>ossess  such  a 
right.  All  combinations,  therefore,  to  effect  such  an  object  are  inju- 
rious, not  only  to  the  individual  particularly  oppressed,  but  to  the  pub- 
lic at  large.  In  the  present  case  an  industrious  man  was  driven  out 
of  employment  by  the  unlauful  measures  pursued  by  the  defendants,  and 
an  injury  done  to  the  community  by  diminishing  the  quantity  of  pro- 
ductive labor,  and  of  internal  trade.  In  so  far  as  the  individucd  suf- 
fers an  injury,  the  remedy  by  indictment  is  taken  away  by  our  re- 
vised statutes  and  the  sufferer  is  left  to  his  action  on  the  case  ;  but 
in  so  far  as  the  public  are  concerned,  in  the  embarrassment  to  trade 
by  the  discouragement  of  industry,  the  defendants  are  liable  to  pun- 
ishment by  indictment.  .  .  .  Competition  is  the  life  of  trade.  If 
the  defendants  cannot  make  coarse  boots  for  less  than  one  dollar  per 
pair,  let  them  refuse  to  do  so  ;  but  let  them  not  directly  or  indirectly 
undertake  to  say  that  others  shall  not  do  the  work  for  a  less  price.  It 
may  be  that  Pennock,  from  greater  industry  or  greater  skill,  made 
more  profit  by  making  boots  at  seventy-  five  cents  per  pair  than  the 
defendants  at  a  dollar.  He  had  a  right  to  work  for  what  he  pleased. 
His  employer  had  a  right  to  employ  him  for  such  price  as  they  could 
agree  upon.  The  interference  of  the  defendants  was  unlawful  ;  its  ten- 
dency is  not  only  to  individual  ojipression,  but  to  p)ublic  inconvenience 
and  enibarassment." 

The  opinion,  of  course,  must  be  taken  as  a  whole.  Its 
point  is  not  to  be  taken  from  a  single  detached  sentence. 
As  to  the  point  actually  decided,  this  case  is  good  law.  The 
obiter  dicta,  however,  are  not  to  be  accepted  as  law.  The 
case  must  not  be  interpreted  as  an  authority  to  the  broad 
proposition  that  a  combination  merely  "  to  raise  wages" 
is  a  crime,  provided  that  combination  involves  no  interfer- 
ence with  the  rights  of  others.  If  "  Pennock  had  a  right 
to  work  for  what  he  j)leased,"  as  the  court  say  he  had, 


PRIVATE   EMPLOYMENTS.  113 

and  if  he  had  a  right  to  agree  as  to  his  own  rate  of  wages 
with  his  employer,  he  had  also  the  right  to  agree  as  to 
his  own  rate  of  wages  with  his  fellow-employee.  If  Pen- 
nock  had  that  right,  other  workmen  had  the  same  right. 
Certainly  the  question,  whether  or  not  an  agreement  fix- 
ing the  rate  of  wages  is  or  is  not  unlawful,  cannot  depend 
on  the  mere  fact  of  who  is  the  other  contracting  party. 
If  one  may  make  an  agreement  with  an  employer  to  work 
at  a  specific  rate,  he  may  surely  make  the  same  agree- 
ment with  a  fellow-employee.  But  when  any  one  "in- 
terferes" with  that  same  right  of  other  men,  then  he  com- 
mits a  wrong  on  those  other  men,  for  which  the  law 
gives  a  remedy  by  civil  action  ;  and  in  the  case  of  a  com- 
bination, or  conspiracy,  to  so  "  interfere,"  the  law  gives  a 
remedy  by  indictment. 

The  subject  had  a  further  review  in  one  of  the  ablest 
opinions  in  the  State  of  New  York  on  this  branch  of  the 
law,  in  The  Master  Stevedores''  Association  v.  WalsJiAa) 
In  that  case,  after  a  careful  examination  of  the  authori- 
ties, Mr.  Justice  Daly  reviewed  the  Fislier  case  in  the 
following  terms  :  "  The  feature  which  distinguishes  this 
case  from  the  one  under  consideration  is,  that  coercive 
measures  were  there  resorted  to  to  compel  a  compliance^ 
not  only  on  the  part  of  master  shoemakers,  but  of  jour- 
neymen not  members  of  the  association,  with  the  regula- 
tions the  combination  had  established.  This  teas  under- 
taking to  interfere  with  the  rights  of  others,  and  it  has 
frequently  been  held  that  combinations  to  prevent  any 
journeyman  from  loorklng  below  certain  rates,  or  to  pre- 
vent master  workmen  from  employing  one  except  at  cer- 
tain rates,  are  unlawful^  and  that  the  parties  engaging 
in  such  combination  may  be  indicted  for  a  conspiracy." 

In  the  case  of  People  v.  Fisher,  therefore,  although 
one  of  its  sentences,  taken  separately,  is  to  the  effect  that 
a  mere  ' '  combination  to  raise  wages' '  is  indictable,  yet 
the  case  was  not  such  a  combination  as  matter  of  fact,  nor 

(a)  2  Daly,  1,  in  the  year  1867. 


114        ,  AMERICAN   LAW   AS   TO 

did  the  court  so  consider  it.  The  court  considered  the 
case,  as  it  was  pleaded  in  the  indictment,  and  proved  by 
the  evidence,  as  a  combination  to  interfere  unlawfully 
with  the  lawful  rights  of  others.  The  entire  opinion  must 
be  read  in  that  light,  and  single  detached  phrases  must  be 
disregarded. 

Thereafter  came  the  statute  of  1870(a)  entitled  "An 
act  in  relation  to  employers  and  persons  employed,  and 
to  amend  subdivision  six  of  section  eight,  chapter  one, 
part  four  of  the  Revised  Statutes,"  which  is  as  follows  : 

"  Sec.  1.  The  provisions  of  subdivision  six  of  section  one,  chap, 
ter  one,  title  six,  part  four  of  the  Revised  Statutes,  shall  not  be  con- 
strued in  any  court  of  this  State  to  restrict  or  prohibit  the  orderly 
and  peaceable  assembling  or  co-operation  of  persons  employed  in 
any  profession,  trade  or  handicraft,  for  the  purpose  of  securing  an 
advance  in  the  rate  of  wages  or  compensation  or  for  the  maintenance 
of  such  rate." 

Under  this  statute  was  decided  the  case  of  Johnston 
Harvester  Co.  v.  Mein7iardt,{h)  which  was  an  action  to 
enjoin  unlawful  interference  by  strikers  with  the  business 
of  the  plaintiff.  The  court  denied  the  application  for  an 
injunction  on  the  ground  that  there  was  no  unlawful  in- 
terference with  the  plaintiff's  legal  rights.  In  a  very  able 
opinion  the  statute  of  1870  was  considered,  and  the  well- 
established  distinction,  betw^een  combinations  which  did, 
and  did  not,  interfere  with  the  legal  rights  of  others, 
was  fully  recognized.  The  language  of  the  opinion  on 
that  point  is  as  follows  : 

"  This  statute  does  not,  however,  permit  an  association  or  trades 
union,  so  called,  or  any  body  of  men  in  the  aggregate,  to  do  any  act 
which  ea.ch  one  of  such  persons  in  his  individual  capacity,  and  acting 
independently,  had  not  a  right  to  do  before  the  act  was  jmssed.  This 
act  does  not  shield  a  person  from  liability  for  his  action  in  intimidat- 
ing or  coercing  a  fellow-laborer  so  that  he  shall  leave  his  employer's 


(a)  Laws  1870,  chap.  19. 

(b)  9  Abbott's  New  Cases,  395,  a.d.  1880. 


PRIVATE   EMPLOYMENTS.  115 

service.  Such  conduct  is,  in  its  nature,  a  trespass  uj)on  the  rights 
of  business  of  the  employer.  If  he  compels,  by  assault  or  violence, 
by  threats,  by  acts  of  coercion,  a  fellow  craftsman  to  leave  the  em- 
ploy of  another,  he  commits  an  offence  against  the  rights  of  such  per- 
son, which  is  hardly  distinguishable  from  an  act  which  should  itself 
injure  or  destroy  the  product  of  that  mans  labor.  It  is  a  direct  injury 
to  property  rights,  and  may  be  regarded  as  the  sole  proximate  cause 
of  such  injury,  for  the  laborer,  in  such  cases,  has  not  freedom  of 
action,  and  cannot  himself  be  deemed  to  take  any  voluntary  part  in 
the  transaction." 

The  act  of  1870,  as  so  often  happens,  had  really  made 
no  modification  in  the  common  law. 

There  the  law  rested  in  the  State  of  New  York  until 
the  year  1893,  when  a  decision  was  made,  which  will  be 
considered  later.  But  until  that  later  decision,  it  may 
be  stated  with  accuracy,  that  any  mere  contract,  which 
looked  only  to  the  raising  or  maintaining  of  the  prices 
of  the  property  of  the  contracting  parties,  or  which 
looked  to  the  regulation  only  of  the  action  of  the  con- 
tracting parties,  or  to  the  prevention  of  competition  be- 
tween the  contracting  parties,  and  went  no  further,  was 
neither  criminal  nor  unlawful.  In  the  State  of  New 
York,  in  that  respect,  we  were  governed  by  the  English 
common  law.  It  need  not  be  said,  that  in  the  period  be- 
tween the  enactment  of  our  Revised  Statutes  and  the 
year  1893  there  were  undoubtedly  many  such  contracts. 
A  considerable  number  of  them  came  before  the  courts. 
Some  of  them,  as  will  be  hereafter  noted,  were  not  only 
held  to  be  lawful,  but  they  were  specihcally  enforced  in 
equity.  No  doubt,  it  is  possible  to  find  in  the  numerous 
New  York  cases  obiter  dicta,  to  the  effect  that  such  con- 
tracts were  "unlawful."  But  down  to  the  case  above 
alluded  to,  there  was  in  the  State  of  New  York,  so  far  as  1 
am  aware,  no  authority  holding  that  doctrine.  On  this 
point,  the  courts  of  New  York  were  thoroughly  in  accord 
with  the  English  courts,  and  with  the  other  courts  of 
greatest  weight  in  this  country. 

In  short,  independently  of  statutes,  and  under  the  New 


116   AMERICAN   LAW   AS   TO   PRIVATE   EMPLOYMENTS. 

York  Revised  Statutes,  and  similar  statutes  in  other 
States,  mere  contracts  of  combination,  in  private  employ- 
ments, whether  between  employers  or  employees,  and 
whether  they  concerned  labor  or  merchandise,  had  been 
emancipated  from  the  unreasonable  and  impracticable 
letters  of  antiquated  mediaeval  legislation. 


CHAPTER  IV. 

THE   COURSE   OF   THE   AMERICAN   LAW   AS   TO   PUBLIC 
EMPLOYMENTS. 

The  course  of  the  American  law  as  to  public  employ- 
ments has  been  the  same  as  that  of  the  English  law  ;  that 
is,  there  has  been  a  remarkable  increase  in  the  degree  of 
state  control  exercised  over  such  employments. 

The  reason  of  that  fact  is  to  be  found  in  the  great  in- 
crease in  the  number  of  such  employments,  and  in  the 
closeness  of  their  relations  with  the  ordinary  life  of  the 
community.  In  the  early  history  of  this  country,  as  in 
that  of  England,  such  employments  were  comparatively 
few  in  number,  and  of  comparatively  slight  importance. 
The  state  control  exercised  over  them,  though  well  estab- 
lished in  law,  was  very  slight,  as  matter  of  fact. 

With  the  construction  of  railroads,  followed  by  the  in- 
vention of  the  telegraph,  and  the  introduction  of  water 
companies,  gas  companies,  lighting  companies,  and  others 
of  the  same  character,  the  necessity  of  state  supervision 
and  control  over  the  use  of  the  properties  involved  in  such 
enterprises,  though  the  properties  were  in  law  private 
properties,  became  very  manifest. 

The  necessity  of  such  control  was  recognized  at  an  early 
period.  In  the  case  of  railroads,  inasmuch  as  their  prop- 
erty was  largely  acquired  by  the  exercise  of  the  right  of 
eminent  domain,  it  was  natural,  that  at  the  outset  there 
should  be  regulations  by  statute  as  to  the  use  of  that 
property. 

We  find,  therefore,  a  large  number  of  statutes,  in  the 
different  States,  which  regulate  the  use  of  railroad  proper- 
ties, and  the  performance  of  the  duties  of  railroad  com- 
panies to  the  public. 


118  AMERICAT^r   LAW   AS   TO 

We  find  also  a  considerable  number  of  cases,  where  the 
courts  have  intervened  by  the  writ  of  mandamus,  to  com- 
pel the  performance  by  those  companies  of  those  duties 
to  the  public. 

It  is  foreign  to  the  purpose  of  this  treatise  to  go  into  a 
detailed  examination  of  the  many  cases  in  which  this  state 
control  is  exercised  over  public  employments.  Our  pur- 
pose here  is  simply  to  show  the  difference  between  the 
tendencies  and  growth  of  the  law  in  the  two  classes  of 
employments,  public  and  private. 

It  is  sufficient,  therefore,  as  to  railroad  companies,  to 
quote  from  a  very  exhaustive  and  able  opinion  of  Mr. 
Justice  Davis(a)  which  gives  a  statement  of  the  legal 
ground  on  which  this  right  of  state  control  rests,  together 
with  an  enumeration  of  cases  in  which  the  law  courts 
have  compelled  by  mandamus  the  performance  by  rail- 
road companies  of  their  public  duties. 

'*  The  question  presented  by  the  motion  is  one  of  signal  impor- 
tance. It  is  whether  the  people  of  the  State  can  invoke  the  power 
of  the  courts  to  compel  the  exercise  by  railroad  corporations  of  the 
most  useful  public  functions  with  which  they  are  clothed.  If  the 
people  have  that  right,  there  can  be  no  doubt  that  their  attorney- 
general  is  the  proper  officer  to  set  it  in  effective  operation  on  their 
behalf.  (1  R.  S.,  179,  §  1  ;  Code  of  Civ.  Proc,  §  1993  ;  Peo- 
ple V.  Halsey,  37  N.  Y.,  344  ;  People  v,   Collins,  19  Wend.  56.) 

"  The  question  involves  a  consideration  of  the  nature  of  this  class 
of  corporations,  the  objects  for  which  they  are  created,  the  powers 
conferred  and  the  duties  imposed  upon  them  by  the  laws  of  their 
creation,  and  of  the  State.  As  bodies  corporate,  their  ownership 
may  be  and  usually  is  altogether  private,  belonging  wholly  to  the 
holders  of  their  capital  stock  ;  and  their  management  may  be  vested 
in  such  officers  or  agents  as  tfie  stockholders  and  directors  under  the 
pro\isions  of  law,  may  appoint.  In  this  sense  they  are  to  be  regard- 
ed as  trading  or  private  corporations,  having  in  view  the  profit  or 
advantages  of  the  corporators.  But  these  conditions  are  in  no  just 
sense  in  conflict  with  their  obligations  and  duties  to  the  public.  The 
objects  of  their  creation  are  from  their  very  nature,  largely  different 

(a)  People  v.  New  York  Central,  etc..  R.  R.  Co.,  38  Hun,  543. 


PUBLIC    EMPLOYMENTS.  119 

from  those  of  ordinary  private  and  trading  corporations.  Railroads 
are,  in  every  essential  quality,  public  highways,  created  for  public 
use,  but  permitted  to  be  owned,  controlled  and  managed  by  private 
persons.  But  for  this  quality  the  railroads  of  the  respondents  could 
not  lawfully  exist.  Their  construction  depended  upon  the  exercise 
of  the  right  of  eminent  domain,  which  belongs  to  the  State  in  its  cor- 
porate capacity  alone,  and  cannot  be  conferred,  except  upon  a  '  pub- 
lic use.'  The  State  has  no  power  to  grant  the  right  of  eminent 
domain  to  any  corporation  or  person  for  other  than  a  public  use. 
Every  attempt  to  go  beyond  that  is  void  by  the  constitution  ;  and 
although  the  legislature  may  determine  what  is  a  necessary  public 
use,  it  cannot  by  any  sort  of  enactment  divest  of  that  character  any 
portion  of  the  right  of  eminent  domain  which  it  may  confer.  This 
characteristic  of  public  use  is  in  no  sense  lost  or  diminished  by  the 
fact  that  the  use  of  the  railroad  by  the  corporation  which  constructs 
or  owns  it,  must,  from  its  nature,  be  exclusive.  That  incident  grows 
out  of  the  method  of  use  which  does  not  admit  of  any  enjoyment  in 
common  by  the  public.  The  general  and  popular  use  of  a  railroad 
as  a  highway  is  therefore  handed  over  exclusively  to  corporate  man- 
agement and  control  because  that  is  for  the  best  and  manifest  advan- 
tage of  the  public.  The  progress  of  science  and  skill  has  shown  that 
highways  may  be  created  for  public  use,  of  such  form  and  kind  that 
the  best  and  most  advantageous  enjoyment  by  the  people  can  only 
be  secured  through  the  ownership,  management  and  control  of  cor- 
porate bodies  created  for  that  purpose,  and  the  people  of  the  State 
are  not  restricted  from  availing  themselves  of  the  best  modes  for  the 
carriage  of  their  persons  and  property.  There  is  nothing  in  the 
Constitution  hostile  to  the  adoption  and  use  by  the  State  of  any  and 
every  newly  developed  form  or  kind  of  travel  and  traffic,  which  have 
a  public  use  for  their  end  and  aim,  and  giving  to  them  vital  activity 
by  the  use  of  the  power  of  eminent  domain. 

"  When  the  earliest  Constitution  of  our  State  was  adopted,  rail- 
roads were  unknown.  The  public  highways  of  the  State  were  its 
turnpikes,  ordinary  roads  and  navigable  waters.  The  exercise  of 
eminent  domain  in  respect  of  them,  was  permitted  by  the  Constitu- 
tion for  the  same  reasons  that  adapt  it  now  to  the  greatly  improved 
methods  of  travel  and  transportation  ;  and  in  making  this  adapta- 
tion, there  is  no  enlarged  sense  given  to  the  language  of  the  Consti- 
tution, so  long  as  its  inherent  purpose — the  creation  only  of  public 
use — be  faithfully  observed. 


120  AMERICAN   LAW   AS   TO 

"These  principles  are  abundantly  sustained  by  authority,  [n 
Bloodgood  V.  The  Mohaivk  and  Hudson  River  Railroad  Cotnjjany  (18 
Wend.,  9),  the  court  of  last  resort  in  this  State  first  announced 
them,  and  affixed  to  railroads  their  true  character  as  public  high- 
ways. It  is  there  declared  that  the  fact  that  railroad  corporations 
may  remunerate  themselves  by  tolls  and  fares,  *  does  not  destroy  the 
public  nature  of  the  road,  or  convert  it  from  a  public  to  a  private 
use.  ...  If  it  is  a  public  franchise  and  granted  to  the  company 
for  the  purpose  of  providing  a  mode  of  public  conveyance,  the  com- 
pany, in  accepting  it,  engages,  on  its  part,  to  use  it  in  such  manner 
as  will  accomplish  the  object  for  which  the  legislature  designed  it 
(pages  21,  22).  And  in  Olcott  v.  The  Supervisors  (16  Wall,  678, 
on  page  694),  the  Supreme  Court,  of  the  United  States  adjudged 
'  that  railroads,  though  constructed  by  private  corporations  and  owned 
by  them,  are  public  highways,  has  been  the  doctrine  of  nearly  all  the 
courts  ever  since  such  conveniences  for  passage  and  transportation 
have  had  any  existence.  Very  early  the  question  arose  whether  a 
State's  right  of  eminent  domain  could  be  exercised  by  a  private  cor- 
poration created  for  the  purpose  of  constructing  a  railroad.  Clearly 
it  could  not,  unless  taking  land  for  such  a  purpose  by  such  an  agency 
is  taking  land  for  public  use.  The  right  of  eminent  domain  nowhere 
justifies  taking  property  for  private  use.  Yet  it  is  a  doctrine  univer- 
sally accepted,  that  a  State  legislature  may  authorize  a  private  cor- 
poration to  take  land  for  the  construction  of  such  a  road,  making 
compensation  to  the  owner.  What  else  does  this  doctrine  mean,  if 
not  that  building  a  railroad,  though  it  be  built  by  a  private  corpora- 
tion, is  an  act  done  for  a  public  use  ?  And  the  reason  why  the  use 
lias  always  been  held  a  public  one  is  that  such  a  road  is  a  highway, 
whether  made  by  the  government  itself,  or  by  the  agency  of  cor- 
porate bodies,  or  even  by  individuals,  when  they  obtain  their  power 
to  construct  it  from  legislative  grant.  .  .  .  Whether  the  use  of  a 
railroad  is  a  public  or  a  private  one,  depends  in  no  measure  upon  the 
question  who  constructed  it  or  who  owns  it.  It  has  never  been  con- 
sidered a  matter  of  any  importance  that  the  road  was  built  by  the 
agency  of  a  private  corporation.  No  matter  who  is  the  agent,  the 
function  performed  is  that  of  the  State.  Though  the  ownership  is 
private,  the  use  is  public.  .  .  .  The  owners  may  be  private  com- 
panies, but  they  are  compellable  to  permit  the  public  to  use  their  works 
in  the  manner  in  which  such  works  can  be  used.  That  all  persons 
may  not  put  their  own  cars  upon  the  road,  and  use  their  own  motive 


PUBLIC   EMPLOYMENTS.  121 

power,  has  no  bearing  upon  the  question  wliether  the  road  is  a  pub- 
lic liighway.  It  bears  only  upon  the  mode  of  use,  of  which  the  legis- 
lature is  the  exclusive  judge.' 

"  All  public  highways  are  subjects  of  genera!  State  jurisdiction, 
because  their  uses  are  the  common  property  of  the  public.  This 
principle  of  the  common  law  is  in  this  State  of  universal  application. 
As  to  the  class  of  public  highways  known  as  railroads,  the  common 
law  is  fortified  by  the  express  conditions  of  the  statutes  creating  or 
reofulatinp"  or  controlling  them. 

"  The  general  railroad  act  of  this  State  may  now  be  regarded  as 
the  general  charter  of  all  such  corporations.  It  aulhorizes  the  or- 
ganization of  corporations  for  '  the  constructing,  maintaining  and 
operating  '  of  railroads  '  for  public  use,'  and  it  imposes  upon  them 
the  duty  *  to  furnish  accommodations  for  all  passengers  and  property, 
and  to  transport  all  persons  and  property  on  payment  of  fare  or 
freight."  (Laws  of  1850,  chap.  140,  §§  1,  36.)  These  words  are 
a  brief  summary  in  respect  of  the  duties  imposed  upon  such  corpora- 
tions by  all  the  provisions  of  the  act.  Those  duties  are  consigned  to 
them  as  public  trusts,  and  as  was  said  in  Messenger  v.  The  Pennsyl- 
vania Railroad  Company  (36  N.  J.,  407),  '  although  in  the  hands  of 
a  private  corporation,  they  are  still  sovereign  franchises,  and  must  be 
used  and  treated  as  such  ;  they  must  be  held  in  trust  for  the  general 
good.'  This  relation  of  such  a  corporation  to  the  State  is  forcibly 
expressed  by  Emmons,  J.,  in  Talcott  v.  Township  of  Pine  Grove 
(1  Flippin,  U.  S.  Circuit  Ct.  Rep.,  144)  :  'The  road  once  construct- 
ed is,  instanter,  and  by  mere  force  of  the  grant  and  law,  embodied 
in  the  governmental  agencies  of  the  State  and  dedicated  to  public 
use.  All  and  singular  its  cars,  engines,  rights  of  way  and  property 
of  every  description,  real,  personal  and  mixed,  are  but  a  trust  fund 
for  the  political  power,  like  the  functions  of  a  public  office.  The 
judicial  personage — the  corporation  created  by  the  sovereign  power 
expressly  for  this  sole  purpose  and  no  other — 'is,  in  the  most  strict 
technical  and  unqualified  sense,  but  its  trustee.  This  is  the  primary 
and  sole  legal  political  motive  for  its  creation.  The  incidental  inter- 
est and  profits  of  individuals  are  accidents,  both  in  theory  and  prac- 
tice.' 

"  The  acceptance  of  such  trusts  on  the  part  of  a  corporation,  by 
the  express  and  implied  contracts  already  referred  to,  makes  it  an 
agency  of  the  State  to  perform  public  functions  which  might  other- 
wise be  devolved  upon  public  officers.     The  maintenance  and  control 


122  AMERICAN   LAW   AS   TO 

of  most  other  classes  of  public  highways  are  so  devolved,  and  the 
performance  of  every  official  duty  in  respect  of  them  may  be  com- 
pelled by  the  courts,  on  application  of  the  State,  while  private  dam- 
ages may  also  be  recoverable  for  individual  injuries.  The  analogy 
between  such  oflicials  and  railroad  corporations  in  regard  to  their 
relations  to  the  State,  is  strong  and  clear,  and  so  far  as  affects  the 
construction  and  proper  and  efficient  maintenance  of  their  railways 
will  be  questioned  by  no  one.  It  is  equally  clear,  we  think,  in  re- 
gard to  their  duty  as  carriers  of  persons  and  property.  This  springs 
sharply  out  of  the  exclusive  nature  of  their  right  to  do  those  things. 
On  other  public  highways  every  person  may  be  his  own  carrier  ;  or 
he  may  hire  whomsoever  he  will  t(  do  that  service.  Between  him 
and  such  employee  a  special  and  personal  relation  exists,  independent 
of  any  public  duty,  and  in  which  the  State  has  no  interest.  In  such 
a  case,  the  carrier  has  not  contracted  with  the  State  to  assume  the 
duty  as  a  public  trust,  nor  taken  the  right  and  power  to  do  it  from 
the  State  by  becoming  the  special  donee  and  depositary  of  a  trust. 
A  good  reason  may,  therefore,  be  assigned  why  the  State  will  not  by 
mandamus  enforce  the  performance  of  his  contract  by  such  a  carrier. 
But  the  reason  for  such  a  rule  altogether  fails  when  the  public  high- 
way is  the  exclusive  property  of  a  body  corporate,  which  alone  has 
power  to  use  it,  in  a  manner  which  of  necessity  requires  that  all 
management,  control  and  user  for  the  purposes  of  carriage  must  be 
limited  to  itself,  and  which,  as  a  condition  of  the  franchise  that 
grants  such  absolute  and  exclusive  power  over  and  user  of  a  public 
highway,  has  contracted  with  the  State  to  accept  the  duty  of  carry- 
ing all  persons  and  property  within  the  scope  of  its  charter,  as  a 
public  trust.  The  relation  of  the  State  to  such  a  body  is  entirely 
different  from  that  which  it  bears  to  the  individual  users  of  a  com- 
mon highway,  as  between  whom  and  the  State  no  relation  of  trust 
exists  ;  and  there  is  small  reason  for  seeking  analogies  between  them. 
It  is  the  duty  of  the  State  to  make  and  maintain  public  highways. 
That  duty  it  performs  by  a  scheme  of  laws,  which  set  in  operation 
the  functions  of  its  political  divisions  into  counties,  towns  and  other 
municipalities,  and  their  officers.  It  can  and  does  enforce  those 
duties  whenever  necessary  through  its  courts.  It  is  not  the  duty  of 
the  State  to  be  or  become  a  common  carrier  upon  its  public  high- 
ways ;  but  it  may,  in  some  cases,  assume  that  duty,  and  whenever  it 
lawfully  does  so,  the  execution  of  the  duty  may  be  enforced  against 
the  agents  or  officers  upon  whom  the  law  devolves  it.     It  may  grant 


PUBLIC    EMPLOYMENTS.  123 

its  power  to  construct  a  public  higliway  to  a  corporation  or  an  indi- 
vidual and  with  that  power  its  right  of  eminent  domain  in  order  to 
secure  the  public  use  ;  and  may  make  the  traffic  of  the  highway 
common  to  all  on  such  terms  as  it  may  impose.  In  such  case  it  is 
its  duty  to  secure  that  common  traffic,  when  refused,  by  the  authority 
of  its  courts.  [People  v.  Collins,  19  Wend.  56  ;  People  v.  Commis- 
sioners of  Salem,  1  Cow.  23.)  Or  it  may  grant  the  same  powers  of 
construction  and  maintenance  with  the  exclusive  enjoyment  of  use 
which  the  manner  of  use  requires,  and  if  that  excludes  all  common 
travel  and  transportation  it  may  impose  on  the  corporation  or  person, 
the  duty  to  furnish  every  requisite  facility  for  carrying  passengers 
and  freight,  and  to  carry  both  in  such  manner  and  at  such  times  as 
public  needs  may  require.  Why  is  that  duty,  in  respect  of  the 
power  to  compel  its  performance  through  the  courts,  not  in  the  cate- 
gory of  all  others  intrusted  to  such  a  body  ?  The  writ  of  mandamus 
has  been  awarded  to  compel  a  company  to  operate  its  road  as  one 
continuous  line  ( Union  Pacific  R.  R.  Co.  v.  Hall,  91  U.  S.  343)  ; 
to  compel  the  running  of  passenger  trains  to  the  terminus  of  the  road 
{State  V.  H.  and  N.  H.  Ry.  Co.,  29  Conn.  538)  ;  to  compel  the 
company  to  make  fences  and  cattle  guards  [People  ex  rel.  Oarbutt  v. 
Rochester  State  Line  R.  R.  Co.,  14  Ilun,  373  ;  S.  C,  76  N.  Y.  294)  ; 
to  compel  it  to  build  a  bridge  (People  ex  rel.  Kimball  v.  B.  and 
A.  R.  R.  Co.,  70  N.  Y.  569)  ;  to  compel  it  to  construct  its  road 
across  streams,  so  as  not  to  interfere  with  navigation  [State  v.  N.  E. 
R.  R.  Co.,  9  Richardson,  247)  ;  to  compel  it  to  run  daily  trains 
[In  re  New  Brunswick,  etc.,  R.  R.,  W.  &  B.  667)  ;  to  compel  the 
delivery  of  grain  at  a  particular  elevator  ( Chicago  and  Northwestern 
R.  R.  Co.  V.  People,  56  111.  365)  ;  to  compel  the  completion  of  its 
road  [Farmers^  Loan  and  Trust  Company  v.  Henning,  17  Am.  Law 
Keg.  (X.  S.)  266)  ;  to  compel  the  grading  of  its  track  so  as  to 
make  crossings  convenient  and  useful  [People  ex  rel.  Green  v.  D.  and 
C.  R.  Co.,  58  N.  Y.  152  ;  N.  Y.  C.  and  H.  R.  R.  R.  Co.  v.  Peo- 
ple, 12  Uun,  195  ;  S.  C.  74  N.  Y.  302  ;  Indiana2)oUs  R.  R.  Co.  v. 
The  State,  37  Ind.  489)  ;  to  compel  the  re-establishment  of  an 
abandoned  station  [State  v.  R.  R.,  37  Conn.  154)  ;  to  compel  the 
replacement  of  a  track  taken  up  in  violation  of  its  charter  [Rex  v. 
Severn  and  Wye  Ry.  Co.,  2  Barn.  &  Aid.  646)  ;  to  prevent  the 
abandonment  of  a  road  once  completed  (  Talcott  v.  Pine  Grove,  supra, 
1  Flippin,  145)  ;  and  to  compel  a  company  to  exercise  its  franchise 
[People  V.  A.  and  V.  R.  R.  Co.,  24  N.  Y.  261).     These  are  all  ex- 


124  AMERICAN   LAW   AS   TO 

press  or  implied  obligations  arising  from  the  charters  of  the  railroad 
companies,  but  not  more  so  than  the  duty  to  carry  freight  and  pas- 
sengers. That  duty  is,  indeed,  the  ultima  ratio  of  their  existence  ; 
the  great  and  sole  public  good  for  the  attainment  and  accomplish- 
ment of  which  all  the  other  powers  and  duties  are  given  or  imposed. 
It  is  strangely  illogical  to  assert  that  the  State,  through  the  courts, 
may  compel  the  performance  of  every  step  necessary  to  bring  a  cor- 
poration into  a  condition  of  readiness  to  do  the  very  thing  for  which 
it  is  created,  but  is  then  powerless  to  compel  the  doing  of  the  thing 
itself. 

"  We  cannot  bring  our  minds  to  entertain  a  doubt  that  a  railroad 
corporation  is  compellable  by  mandamus  to  exercise  its  duties  as  a 
carrier  of  freight  and  passengers  ;  and  that  the  power  so  to  compel 
it  rests  equally  firmly  on  the  ground  that  that  duty  is  a  public  trust, 
which  having  been  conferred  by  the  State  and  accepted  by  the  cor- 
poration may  be  enforced  for  the  public  benefit  ;  and  also  upon  the 
contract  between  the  corporation  and  the  State,  expressed  in  its 
charter  or  implied  by  the  acceptance  of  the  franchise  [Abbott  v. 
Johnstown  R.  R.  Co.,  80  N.  Y.  31)  ;  and  also  upon  ihe  ground  that 
the  common  right  of  all  the  people  to  travel  and  carry  upon  every 
public  highway  of  the  State  has  been  changed  in  the  special  instance, 
by  the  legislature  for  adequate  reasons  into  a  corporate  franchise,  to 
be  exercised  solely  by  a  corporate  body  for  the  public  benefit,  to  the 
exclusion  of  all  other  persons,  whereby  it  has  become  the  duty  of 
the  State  to  see  to  it  that  the  franchise  so  put  in  trust  be  faithfully 
administered  by  the  trustee." 

As  to  railroads,  the  legal  ground  on  which  rests  this 
right  of  state  control,  is  comparatively  simple,  and  is 
easily  comprehended.  Railroad  companies  get  their  ex- 
istence, and  their  property,  largely  under  grant  from  the 
state. 

But  in  Munn  v.  People  of  Illinois,  there  arose  a  most 
interesting  and  novel  question,  as  to  the  right  of  the  State 
of  Illinois  to  fix  by  statute  the  rates  of  compensation  to 
be  charged  by  the  owners  of  grain  elevators  for  the  use  of 
those  elevators,  it  being  the  conceded  fact  that  the  eleva- 
tors were  private  property,  owned  by  private  individuals, 
acquired  by  ordinary  private  i3urchase.  The  legislature 
of  the  State  of  Illinois  had  passed  a  statute  fixing  the 


PUBLIC   EMPLOYMENTS.  125 

maximum  rates  to  be  charged  for  the  use  of  the  elevators 
in  the  storage  and  transportation  of  grain  in  transit  from 
the  interior  to  the  seaboard,  and  making  it  an  indictable 
misdemeanor  to  charge  any  rate  above  the  rates  so  fixed. 
There  had  been  an  indictment  and  conviction  in  the  State 
court  below  for  such  an  overcharge  ;  and  from  the  Judg- 
ment on  such  conviction  an  appeal  was  taken  to  the 
United  States  Supreme  Court.  The  position  taken  by  the 
defense,  which  especially  comes  under  our  notice,  was  that 
the  enforcement  of  this  statutory  regulation  "  deprived" 
the  owners  of  the  elevators  '*  of  their  property  without  due 
process  of  law."  It  appeared  in  the  case,  though  the 
Supreme  Court  aj)peared  to  give  no  considerable  weight 
to  the  point,  that  a  provision  of  the  Illinois  constitution 
(Art.  XIII.,  sec.  5)  required  all  railroad  companies  receiv- 
ing and  transporting  grain  in  bulk  or  otherwise  to  deliver 
the  same  at  any  elevator  to  which  it  might  be  consigned, 
that  could  be  reached  by  any  track  that  was  or  could  be 
used  by  such  company,  and  that  all  railroad  companies 
should  permit  connections  with  elevators  to  be  made  with 
their  tracks  ;  so  that  all  these  elevators  might  be  reached 
by  the  cars  on  their  railroads.  The  inference  was  fair, 
that  the  elevators  in  question  had  been  connected  with  dif- 
ferent railroads  by  virtue  of  these  constitutional  provisions. 
It  also  appeared,  that  the  elevators  in  question,  with  a  lim- 
ited number  of  other  similar  ones,  had  virtually  the  entire 
control  of  the  transit  of  grain  in  bulk  through  the  city  of 
Chicago.  The  decision  of  the  Supreme  Court,  sustaining 
the  conviction  in  the  State  court,  went  on  the  ground  of 
the  public  nature  of  the  employment,  that  the  owners  of 
the  warehouses  exercised  "  a  sort  of  public  oJfRce,"  that 
their  property,  though  conceded  to  be  private  property, 
was  "devoted  to  a  public  use."  To  give  an  adequate 
idea  of  the  reasoning  of  the  court,  it  will  be  well  here  to 
give  an  extract  from  the  opinion.     It  is  as  follows  :{a) 

"  This  brings  us  to  inquire  as  to  the  principles  upon  which  this 
J,a)  Munn  v.  Ptople  of  Illinois,  9i  U.  S.  113. 


126  AMEEICAN   LAW   AS   TO 

power  of  regulation  rests,  in  order  that  we  may  determine  what  is 
within  and  what  without  its  operative  effect.  Looking,  then,  to  the 
common  law,  from  whence  came  the  right  which  the  Constitution 
protects,  we  find  that  when  private  property  is  '  affected  with  a 
public  interest,  it  ceases  to  he  juris  privati  only.'  This  was  said  by 
Lord  Chief  Justice  Hale  more  than  two  hundred  years  ago,  in  his 
treatise  De  Portibus  Maris,  1  Harg.  L.  Tr.,  78,  and  has  been  ac- 
cepted without  objection  as  an  essential  element  in  the  law  of  prop- 
erty ever  since.  Property  does  become  clothed  with  a  public  inter- 
est when  used  in  a  manner  to  make  it  of  public  consequence,  and 
affect  the  community  at  large.  When,  therefore,  one  devotes  his 
property  to  a  use  in  which  the  public  has  an  interest,  he,  in  effect, 
grants  to  the  public  an  interest  in  that  use,  and  must  submit  to  be 
controlled  by  the  public  for  the  common  good,  to  the  extent  of  the 
interest  he  has  thus  created,  lie  may  withdraw  his  grant  by  dis- 
continuing the  use  ;  but,  so  long  as  he  maintains  the  use,  he  must 
submit  to  the  control. 

"  Thus,  as  to  ferries,  Lord  Hale  says,  in  his  treatise  De  Jure 
Maris,  1  Harg.  L.  Tr  ,  6,  the  King  has  '  A  right  of  franchise  or 
privilege,  that  no  man  may  set  up  a  common  ferry  for  all  passengers, 
without  a  prescription  time  out  of  mind,  or  a  charter  from  the  King. 
He  may  make  a  ferry  for  his  own  use  or  the  use  of  his  family,  but 
not  for  the  common  use  of  all  the  King's  subjects  passing  that  way  ; 
because  it  doth  in  consequence  tend  to  a  common  charge,  and  is 
become  a  thing  of  public  interest  and  use,  and  every  man  for  his 
passage  pays  a  toll,  which  is  a  common  charge,  and  every  ferry 
ought  to  be  under  a  public  regulation,  viz. :  that  it  give  attendance 
at  due  times,  keep  a  boat  in  due  order,  and  take  but  reasonable  toll  ; 
for  if  he  fail  in  these  he  is  finable.'  So  if  one  owns  the  soil  and 
landing-places  on  both  banks  of  a  stream,  he  cannot  use  them  for 
the  purposes  of  a  public  ferry,  except  upon  such  terms  and  conditions 
as  the  body  politic  may  from  time  to  time  impose  ;  and  this  because 
the  common  good  requires  that  all  public  ways  shall  be  under  the 
control  of  the  pub.ic  authorities.  This  privilege  or  prerogative  of 
the  King,  who  in  this  connection  only  represents  and  gives  another 
name  to  the  body  politic,  is  not  primarily  for  his  profit,  but  for  the 
protection  of  the  people  and  the  promotion  of  the  general  welfare. 

"  And,  again,  as  to  wharves  and  wharfingers,  Lord  Hale,  in  his 
treatise,  De  Portibus  Maris,  already  cited,  says  : 

"  '  A  man,  for  his  own  private  advantage,  may,  in  a  port  or  town, 


PUBLIC   EMPLOYMENTS.  127 

set  up  a  -wharf  or  crane,  and  may  take  wliat  rates  lie  and  his  cus- 
tomers can  agree  for  cranage,  wharfage,  liousellage,  pesage,  for  he 
dotli  no  more  than  is  lawful  for  any  man  to  do,  viz. :  makes  the 
most  of  his  own.  ...  If  the  King  or  subject  have  a  public  wharf, 
unto  which  all  persons  that  come  to  that  port  must  come  and  unlade 
or  lade  their  goods  as  for  the  purpose,  because  they  are  the  wharfs 
only  lipenscd  by  the  Queen,  ...  or  because  there  is  no  other  wharf 
in  that  port,  as  it  may  fall  out  where  a  port  is  newly  erected  ;  in 
that  case  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  wharfage,  pesage,  etc.,  neither  can  they  be  enhanced  to  an 
immoderate  rate  ;  but  the  duties  must  be  reasonable  and  moderate, 
though  settled  by  the  King's  license  or  charter.  For  now  the  wharf, 
and  crane  and  other  conveniences  are  effected  with  a  public  interest, 
and  they  cease  to  be  juris  privati  only  ;  as  if  a  man  set  out  a  street 
in  new  building  on  his  own  land,  it  is  now  no  longer  bare  private 
interest,  but  is  affected  by  a  public  interest.' 

"  This  statement  of  the  law  by  Lord  Hale  was  cited  with  approba- 
tion and  acted  upon  by  Lord  Kenyon  at  the  beginning  of  the  present 
century,  in  Bolt  v.  Stennett,  8  T.  R.,  606. 

"  And  the  same  has  been  held  as  to  warehouses  and  warehouse- 


'*  From  the  same  source  comes  the  power  to  regulate  the  charges 
of  common  carriers,  which  was  done  in  England  as  long  ago  as  the 
third  year  of  the  reign  of  William  and  Mary,  and  continued  until 
within  a  comparatively  recent  period.  And  in  the  first  statute  we 
find  the  following  suggestive  preamble,  to  wit  : 

"  '  And  whereas,  divert  wagoners  and  other  carriers,  by  combina- 
tion amongst  themselves,  have  raised  the  prices  of  carriage  of  goods 
in  many  places  to  excessive  rates,  to  the  great  injury  of  the  trade  : 
Be  it,  therefore,  enacted,'  etc.  3  W.  <fe  M.  ch.  12,  sec.  24  ;  3  Stat. 
at  L.  (Gt.  Britain),  481. 

"  Common  carriers  exercise  a  sort  of  public  office,  and  have  duties 
to  perform  in  which  the  public  is  interested.  N.  J.  Nav.  Co.  v. 
Merch.  Bk.,  6  How.,  382. 

"Their  business  is,  therefore,  'affected  with  a  public  interest,' 
within  the  meaning  of  the  doctrine  which  Lord  Hale  has  so  forcibly 
stated. 

"  But  we  need  not  go  further.  Enough  has  already  been  said  to 
show  that,  when  private  property  is  devoted  to  a  public  use,  it  is 


128  AMERICAN   LAW   AS   TO 

subject  to  public  regulation.  It  remains  only  to  ascertain  whether 
the  warehouses  of  these  plaintiffs  in  error,  and  the  business  which  is 
carried  on  there,  come  within  the  operation  of  this  principle. 

"  For  Ihis  purpose  we  accept  as  true  Ihe  statements  of  fact  con- 
tained in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs  in 
error.  From  these  it  appears  that  '  The  great  producing  region  of 
the  West  and  Northwest  sends  its  grain  by  water  and  rail  to  Chicago, 
where  the  greater  part  of  it  is  shipped  by  vessel  for  transportation  to 
the  seaboard  by  the  Great  Lakes,  and  some  of  it  is  forwarded  by 
railway  to  the  Eastern  ports.  .  .  .  Vessels,  to  some  extent,  are 
loaded  in  the  Chicago  harbor,  and  sailed  through  the  St.  Lawrence 
directly  to  Europe.  .  .  .  The  quantity  (of  grain)  received  in 
Chicago  has  made  it  the  greatest  grain  market  in  the  world.  This 
business  has  created  a  demand  for  means  by  which  the  immense 
quantity  of  grain  can  be  handled  or  stored,  and  these  have  been 
found  in  grain  warehouses,  which  are  commonly  called  elevators, 
because  the  grain  is  elevated  from  the  boat  or  car,  by  machinery 
operated  by  steam,  into  the  bins  prepared  for  its  reception,  and 
elevated  from  the  bins,  by  a  like  process,  into  the  vessel  or  car  which 
is  to  carry  it  on.  ...  In  this  way  the  largest  traffic  between  the 
citizens  of  the  country  north  and  west  of  Chicago,  and  the  citizens 
of  the  country  lying  on  the  Atlantic  coast  north  of  Washington  is  in 
grain  which  passes  through  the  elevators  of  Chicago.  In  this  way 
the  trade  in  grain  is  carried  on  by  the  inhabitants  of  seven  or  eight 
of  the  great  States  of  the  West  with  four  or  five  of  the  States  lying 
on  the  seashore,  and  forms  the  largest  part  of  interstate  commerce 
in  these  States.  The  grain  warehouses  or  elevators  in  Chicago  are 
immense  structures,  holding  from  300,000  to  1,000,000  bushels  at 
one  time,  according  to  size.  They  are  divided  into  bins  of  large 
capacity  and  great  strength.  .  .  .  They  are  located  with  the  river 
harbor  on  one  side  and  the  railway  tracks  on  the  other  ;  and  the 
grain  is  run  through  them  from  car  to  vessel,  or  boat  to  car,  as  may 
be  demanded  in  the  course  of  business.  It  has  been  found  impossi- 
ble to  preserve  each  owner's  grain  separate,  and  this  has  given  rise  to 
a  system  of  inspection  and  grading,  by  which  the  grain  of  different 
owners  is  mixed,  and  receipts  issued  for  the  number  of  bushels  which 
are  negotiable,  and  redeemable  in  like  kind,  upon  demand.  This 
mode  of  conducting  the  business  was  inaugurated  more  than  twenty 
years  ago,  and  has  grown  to  immense  proportions.  The  railways 
have  found  it  impracticable  to  own  such  elevators,  and  public  policy 


PUBLIC    EMPLOYMENTS.  129 

forbids  the  transaction  of  such  business  by  the  carrier  ;  the  owner- 
ship has,  tliereftjre,  been  by  private  individuals,  who  have  embarked 
tlieir  capital  and  devoted  their  industry  to  such  business  as  a  private 
pursuit.' 

"  In  tliis  connection  it  must  also  be  borne  in  mind  that,  although 
in  1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this 
particular  business,  and  owned  by  about  thirty  persons,  nine  busi- 
ness tinns  controlled  them,  and  that  the  prices  charged  and  received 
for  storage  were  such  '  as  have  been  from  year  to  year  agreed  upon 
and  established  by  the  different  elevators  or  warehouses  in  the  City 
of  Chicago,  and  which  rates  liave  been  annually  published  in  one  or 
more  newspapers  printed  in  said  city,  in  the  month  of  January  in 
each  year,  as  the  established  rates  for  the  year  then  next  ensuing 
such  publication.'  Thus  it  is  apparent  that  all  the  elevating  facilities 
througli  which  these  vast  productions  '  of  seven  or  eight  great  States 
of  the  West '  must  pass  on  the  way  '  to  four  or  five  of  the  States  on 
the  seashore  '  may  be  a  '  virtual  '  monopoly. 

"  Under  such  circumstances  it  is  difficult  to  see  why,  if  the  com- 
mon carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or  the 
wharfinger,  or  the  baker,  or  the  cartman,  or  the  hackney-coachman, 
pursues  a  public  employment  and  exercises  '  a  sort  of  public  ottice,' 
these  plaintiffs  in  error  do  not.  They  stand,  to  use  again  the  lan- 
guage of  their  counsel,  in  the  very  '  gateway  of  commerce,'  and  take 
toll  from  all  who  pass.  Their  business  most  certainly  '  tends  to  a 
common  charge,  and  is  become  a  thing  of  public  interest  and  use.' 
Every  busliel  of  grain  for  its  passage  '  pays  a  toll,  which  is  a  com- 
mon charge,'  and,  therefore,  according  to  Lord  Hale,  every  such, 
warehouseman  '  ought  to  be  under  public  regulation,  viz. :  that  he 
.  .  ,  take  but  reasonable  toil.'  Certainly,  if  any  business  can  be 
clothed  '  with  a  public  interest,  and  cease  to  he  juris  privati  only,' 
this  has  been.  It  may  not  be  made  so  by  the  operation  of  the  Con- 
stitution of  Illinois  or  this  statute,  but  it  is  by  the  facts." 

The  warehouses  in  question  in  that  case,  as  herein- 
before stated,  were  virtually  part  of  the  system  of  xniblic 
transportation  ;  they  had  become  virtually  part  of  the 
public  highways.  This  fact  would  seem  to  constitute 
something  analogous  to  the  dedication  of  a  street  to  the 
use  of  the  j)ublic,  even  though  there  had  been  no  formal 
condemnation  of  the  land,  or  of  an  easement  therein  ; 


130  AMERICAN   LAW   AS   TO 

and  to  furnish  a  reason  based  on  sncli  quasi  dedication, 
for  holding  the  owners  of  the  warehouses  to  public  obliga- 
tions resting  on  that  ground. 

In  the  Munn  case  there  was  a  vigorous  dissenting 
opinion  by  Mr.  Justice  Field,  in  which  Mr.  Justice  Strong 
joined.  But  the  principle  decided  in  that  case  has  been 
reaffirmed  on  many  occasions  by  the  Supreme  Court,  and 
is  firmly  established  in  our  jurisprudence. 

State  control  of  public  employments  may  be  exercised 
under  statutes,  or  in  many  cases  by  the  courts  with- 
out statutes.  But  there  has  been  in  late  years  a  great 
increase  in  the  exercise  of  such  control  by  statute.  It 
will  be  sufficient  to  give  one  instance  of  such,  in  a  few 
sections  of  the  New  York  statute  defining  the  powers  of 
the  Board  of  Railroad  Commissioners,  (a)  They  are  as 
follows  : 

"  §  157.  General  Poioers  and  Deities  of  Board. — The  board  shall 
liave  power  to  administer  oaths  in  all  matters  relating  to  its  duties, 
so  far  as  necessary  to  enable  it  to  discharge  such  duties,  shall  have 
general  supervision  of  all  railroads,  and  shall  examine  the  same  and 
keep  informed  as  to  their  condition,  and  the  manner  in  which  they 
are  operated  for  the  security  and  accommodation  of  the  j)uhlic  and 
their  compliance  with  the  provisions  of  their  charters  and  of  law. 
The  commissioners  or  either  of  them  in  the  performance  of  their  otti- 
cial  duties  may  enter  and  remain  during  business  hours  in  the  cars, 
offices  and  depots,  and  upon  the  railroads  of  any  railroad  corporation 
within  the  state,  or  doing  business  therein  ;  and  may  examine  the 
books  and  affairs  of  any  such  corporation  and  compel  the  produc- 
tion of  books  and  papers  or  copies  thereof,  and  the  board  may  cause 
to  be  subpoenaed  witnesses,  and  if  a  person  duly  subpoenaed  fails 
to  obey  such  subpoena  without  reasonable  cause,  or  shall  without 
such  cause  refuse  to  be  examined,  or  to  answer  a  legal  or  pertinent 
(juestion,  or  to  produce  a  book  or  paper  which  he  is  directed  by  sub- 
poena to  bring,  or  to  subscribe  his  deposition  after  it  has  been  cor- 
rectly reduced  to  writing,  the  board  may  take  such  proceedings  as 
are  authorized  by  the  Code  of  Civil  Procedure  upon  the  like  failure 
or  refusal  of  a  witness  subpoenaed  to  attend  the  trial  of  a  civil  action 

(«)  Laws  of  New  York,  1892,  vol.  3,  p.  2129. 


PUBLIC   EMPLOYMENTS.  131 

before  a  court  of  record  or  a  referee  appointed  by  sncli  court.  The 
board  shall  also  take  testimony  upon,  and  have  a  hearing  for  and 
against  any  proposed  change  of  the  law  relating  to  any  railroad,  or 
of  the  general  railroad  law,  if  requested  to  do  so  by  the  legislature, 
or  by  the  committee  on  railroads  of  the  senate  or  the  assembly,  or 
by  the  governor,  and  may  take  snch  testimony  and  have  such  a  hear- 
ing when  requested  to  do  so  by  any  railroad  corporation,  or  incor- 
porated organization  representing  agricultural  or  commercial  interests 
in  the  state,  and  shall  report  their  conclusions  in  writing  to  the  legis- 
lature, committee,  governor,  corporation  or  organization  making  such 
request  ;  and  shall  recommend  and  draft  such  bills  as  will  in  its  judg- 
ment protect  the  people's  interest  in  and  upon  the  railroads  of  this 
state. 

"  §  158.  Reports  of  Railroad  Corporations. — The  board  shall  pre- 
scribe the  form  of  the  report  required  by  the  railroad  law  to  be 
made  by  railroad  corporations,  and  may  from  time  to  time  make  such 
changes  and  additions  in  such  form,  giving  to  the  corporations  six 
months'  notice  before  the  expiration  of  any  fiscal  year,  of  any  changes 
or  additions  which  would  require  any  alteration  in  the  method  or 
form  of  keeping  their  accounts,  and  on  or  before  September  fifteenth 
in  each  year,  shall  furnish  a  blank  form  for  such  report.  When  the 
report  of  any  corporation  is  defective,  or  believed  to  be  erroneous, 
the  board  shall  notify  the  corporation  to  amend  the  same  within 
thirty  days.  The  originals  of  the  reports,  subscribed  and  sworn  to 
as  prescribed  by  law,  shall  be  preserved  in  the  office  of  the  board. 

"  §  159.  Investigation  of  Accidents. — The  board  shall  investigate 
the  cause  of  any  accident  on  any  railroad  resulting  in  loss  of  life  or 
injury  to  persons,  which  in  their  judgment  shall  require  investigation, 
and  include  the  result  thereof  in  their  annual  report  to  the  legisla- 
ture. Before  making  any  such  examination  or  investigation,  or  any 
investigation  or  examination  under  this  article,  reasonable  notice  shall 
be  given  to  the  corporation,  person  or  persons  conducting  and  man- 
aging such  railroad  of  the  time  and  place  of  commencing  the  same. 
The  general  superintendent  or  manager  of  every  railroad  shall  inform 
the  board  of  any  such  accident  immediately  after  its  occurrence.  If 
the  examination  of  the  books  and  affairs  of  the  corporation,  or  of 
witnesses  in  its  employ,  shall  be  necessary  in  the  course  of  any  exami- 
nation or  investigation  into  i1s  affairs,  the  board,  or  a  commissioner 
thereof,  shall  sit,  for  such  purpose  in  the  city  or  town  of  this  state 
where  the  principal  business  office  of  the  corporation  is  situated  if 


132  AMERIOATSr   LAW   AS   TO 

requested  so  to  do  by  the  corporation  ;  but  the  board  may  require 
copies  of  books  and  papers,  or  abslracts  thereof,  to  be  sent  to  them 
to  any  part  of  ihis  state. 

"  §  160.  HecommendatioHS  of  Board,  where  Law  ha.s  been  Violated. 
— If,  in  the  judgment  of  the  board,  it  shall  appear  that  any  railroad 
corporation  has  violated  any  constitutional  provision  or  law,  or  ne- 
glects in  any  respect  to  comply  with  the  terms  of  the  law  by  which  it 
was  created,  or  unjustly  discriminates  in  its  charges  for  services,  or 
usurps  any  authority  not  granted  by  law,  or  refuses  to  comply  with 
the  provisions  of  any  law,  or  with  any  recommendation  of  the  board, 
it  shall  give  notice  thereof  in  writing  to  the  corporation,  and  if  the 
violation,  neglect  or  refusal  is  continued  after  such  notice,  the  board 
may  forthwith  present  the  matter  to  the  attorney-general,  who  shall 
take  such  proceedings  thereon  as  may  be  necessary  for  the  protection 
of  the  public  interests. 

"  §  161.  Recommendations  of  Board,  when  Repairs  or  other 
Changes  are  Necessary. — If  in  the  judgment  of  the  board,  after  a 
cai'eful  personal  examination  of  the  same,  it  shall  appear  that  repairs 
are  necessary  upon  any  railroad  in  the  state,  or  that  any  addition  to 
the  rolling  stock,  or  any  addition  to  or  change  of  the  station  or  sta- 
tion-houses, or  that  additional  terminal  facilities  shall  be  afforded,  or 
that  any  change  of  the  rates  of  fare  for  transporting  freight  or  pas- 
sengers or  in  the  mode  of  operating  the  road  or  conducting  its  busi- 
ness, is  reasonable  and  expedient  in  order  to  promote  the  security, 
convenience  and  accommodation  of  the  public,  the  board  shall  give 
notice  and  information  in  writing  to  the  corporation  of  the  improve- 
ments and  changes  which  they  deem  to  be  proper,  and  shall  give 
such  corporation  an  opportunity  for  a  full  hearing  thereof,  and  if  the 
corporation  refuses  or  neglects  to  make  such  repairs,  improvements 
and  changes,  within  a  reasonable  time  after  such  information  and 
hearing,  and  fails  to  satisfy  the  board  that  no  action  is  required  to 
be  taken  by  it,  the  board  shall  fix  the  time  within  which  the  same 
shall  be  made,  which  time  it  may  extend.  It  shall  be  the  duty  of 
the  corporation,  person  or  persons  owning  or  operating  the  railroad 
to  comply  with  such  decisions  and  recommendations  of  the  board  as 
are  just  and  reasonable.  If  it  fails  to  do  so  the  board  shall  present 
the  facts  in  the  case  to  the  attorney-general  for  his  consideration  and 
action,  and  shall  also  report  them  in  its  annual  or  in  a  special  report 
to  the  legislature. 

"  §  162.   Legal  Effect  of  Recommendations  and  Action  of  the  Board. 


PUBLIC   EMPLOYMENTS.  133 

— Xo  examination,  request  or  advice  of  the  board,  nor  any  invesliira- 
tion  or  report  made  by  it,  shall  have  the  effect  to  impair  in  any  man- 
ner or  degree  tlie  legal  rights,  duties  or  obligations  of  any  railroad 
corporation,  or  its  legal  liabilities  for  the  consequence  of  its  acts,  or 
of  the  neglect  or  mismanagement  of  any  of  its  agents  or  employees. 
The  supreme  court  at  special  term  shall  have  power  in  its  discretion, 
in  all  cases  of  decisions  and  recommendations  by  the  board  which 
are  just  and  reasonable  to  compel  compliance  therewith  by  manda- 
mus, subject  to  appeal  to  the  general  term  and  the  court  of  appeals, 
and  upon  such  appeal,  the  general  term  and  the  court  of  appeals  may 
review  and  reverse  upon  the  facts  as  well  as  the  law.  (Thus  amend- 
ed by  L.  1892,  chap.  670.) 

"  §  163.  Corporations  must  Furnish  Necessary  Information. — 
Every  railroad  corporation  shall,  on  request,  furnish  the  board  any 
necessary  information  required  by  them  concerning  the  rates  of  fare 
for  transporting  freight  and  passengers  upon  its  road  and  other  roads 
with  which  its  business  is  connected,  and  the  condition,  management, 
and  operation  of  its  road,  and  shall,  on  request,  furnish  to  the  board 
copies  of  all  contracts  and  agreements,  leases  or  other  engagements 
entered  into  by  it  with  any  person  or  corporation.  The  commission- 
ers shall  not  give  publicity  to  such  information,  contracts,  agree- 
ments, leases  or  other  engagements,  if,  in  their  judgment,  the  public 
interests  do  not  require  it,  or  the  welfare  and  prosperity  of  railroad 
corporations  of  the  state  might  be  thereby  injuriously  aiiected. " 

Similar  statutes  in  Xew  York  are  classified  under  what 
is  termed  "  The  Transportation  Corporations  Law,"  being 
Chapter  566  of  the  Laws  of  1890,  as  amended  by  Chapter 
617  of  the  Laws  of  1892.  This  "  Transportation  Corpora- 
tions Law"  has  separate  articles,  which  apply  to  ferry  cor- 
porations, navigation  corporations,  stage-coach  corpora- 
tions, tramway  corporations,  pipe-line  corjiorations,  gas 
and  electric  light  corporations,  water-works  corporations, 
telegraph  and  telephone  corporations,  turnpike,  plank- 
road,  and  bridge  corporations.  The  title  of  this  general 
act  seems  to  me  extremely  happy.  Telephone  corpora- 
tions, at  first  glance,  might  not  seem  to  concern  trans- 
portation. But  in  their  essential  purpose  they  are  com- 
mon carriers,  as  are  all  the  other  corporations  named. 


134      AMEEICAN   LAW   AS   TO   PUBLIC   EMPLOYMENTS. 

So  it  was  virtually  with  tlie  warehousemen  in  the  Munn 
case.  They  are  all  engaged  in  "public  employments." 
It  is  clear  that  public  control  of  all  such  employments  is 
a  necessity. 

That  necessity  has  in  modern  times  been  continually 
on  the  increase.  There  is  every  reason  to  believe  that  it 
will  so  continue. 

Public  control  of  those  employments  has  increased  in 
the  past,  and  will  probably  increase  in  the  future.  Start- 
ing from  almost  nothing,  it  has  become  large  and  intri- 
cate. 

The  tendencies  of  the  law  as  to  these  public  employ- 
ments, it  is  evident,  have  been  directly  the  reverse  of  its 
tendencies  in  the  case  of  jprivate  employments. 


CHAPTER   V. 

RECENT   DECISIONS    AS    TO    CONTRACTS    IN    RESTRAINT   OF 
TRADE   OR   COMMERCE. 

Such  being,  and  long  having  been,  the  condition  of  the 
law,  there  came  in  the  year  1893  the  decision  of  our  New 
York  Court  of  Appeals  in  People  v.  Sheldon. {a)  It  was 
followed  by  the  recent  decision  of  the  United  States 
Supreme  Court  in  United  States  v.  The  Trans  ■Missouri 
Freiglit  Association,  {b) 

These  two  cases  hold  that  a  mere  contract,  which  pro- 
vides that  the  rates  or  prices,  for  traffic  or  merchandise, 
shall  be  fixed  by  one  common  authority  for  all  the  con- 
tracting parties,  and  which  thereby  prevents  competition 
between  the  contracting  parties,  there  being  no  interfer- 
ence with  any  lawful  right  of  any  other  party,  unless  this 
mere  agreement  be  such,  constitutes  a  crime.  The  New 
York  case  was  decided  under  the  provision  of  the  New 
York  Revised  Statutes  i)reviously  quoted.  The  United 
States  Supreme  Court  case  arose  under  a  similar  provision 
in  a  statute  of  the  United  States. 

With  all  possible  deference  to  these  august  tribunals, 
it  is  most  respectfully  submitted,  that  these  decisions  are 
irreconcilably  in  conflict  with  an  overwhelming  line  of 
authorities,  and  with  the  fundamental  princix)les  of  the 
English  and  American  law. 

Let  us  begin  with  a  consideration  of  the  New  York 
case. 

Before  entering  on  that  consideration,  however,  let  us 
recall  the  positions  already  established.     They  are  : 

(a)  People  v.  Sheldon,  139  N.  Y.  251. 

{b)  United  Hates  v.  The  I'ntns- Missouri  Freight  Association,  166  U.  S.  290. 


136  RECENT   DECISIONS   AS   TO    CONTRACTS 

1.  Under  the  English  common  law,  a  mere  contract,  to 
raise  or  maintain  prices,  of  the  property  of  the  parties 
combining,  involving  no  interference  with  the  legal  rights 
of  others,  did  not  constitute  a  crime. 

2.  Such  a  combination  did  constitute  a  crime  under 
certain  early  English  statutes. 

3.  Those  statutes  never  formed  part  of  the  American 
law. 

4.  Similar  statutes  had  been  passed  at  an  early  date  in 
the  State  of  New  York,  and  repealed. 

5.  Thereafter  was  enacted  the  provision  of  the  Revised 
Statutes  making  it  a  crime,  for  "  two  or  more  persons  to 
conspire  ...  to  commit  any  act  injurious  to  trade  or 
commerce." 

It  was  under  this  provision,  that  the  Court  held,  that 
a  contract  of  certain  coal  dealers  in  the  city  of  Lockport, 
forming  "  The  Lockport  Coal  Exchange,''  by  which  they 
agreed  to  sell  coal  at  uniform  rates,  to  be  fixed  from  time 
to  time  for  the  combining  parties  by  a  five-sixths  vote  of 
the  Exchange  members,  constituted  a  crime. 

The  question  is,  whether  that  statute,  under  well-estab- 
lished principles  and  rules  of  statutory  interpretation, 
admits  of  such  construction. 

As  to  the  New  York  common  law  on  the  subject,  prior 
to  this  statute,  there  can  hardly  be  said  to  be  an  oj)en 
question.  It  was  the  same  as  the  common  law  of 
England.  As  to  what  was  the  English  common  law  on 
the  subject,  it  is  sufficient  to  refer  to  the  Morful  Steam- 
sliip  case  already  cited.  If  it  be  said  that  that  case  .is 
not  a  conclusive  authority  for  a  court  of  the  State  of 
New  York,  the  answer  is,  that  it  is  an  authority  as  to 
the  common  law  of  England.  It  would  seem,  therefore, 
as  already  stated,  that  the  question,  what  was  the  law  of 
the  State  of  New  York  prior  to  the  enactment  of  the 
Revised  Statutes,  can  hardly  be  said  to  be  an  open 
question. 

To  establish  the  position,  that  the  English  statutes  as 
to  consx)iracy,  and  as  to  "  Offences  against  Public  Trade" 


IN   EESTRAINT   OF   TRADE   OR   COMMERCE.  137 

did  not  form  part  of  the  law  of  our   different  States, 
authorities  have  already  been  cited. 

But  in  New  York  the  situation  on  this  point  was  pecul- 
iar. The  Constitution  of  the  State  of  New  York  of  April 
2()th,  1777,  reads  : 

"  XXXV.  And  this  convention  doth  further,  in  the  name  and  by 
the  authority  of  the  good  people  of  this  state,  OKDAIX,  DETER- 
MINE, AND  DECLARE,  that  such  parts  of  the  common  law  of 
England,  and  of  tlie  statute  law  of  England  and  Great  Britain,  and 
of  the  acts  of  the  legislature  of  the  colony  of  New  York,  as  together 
did  form  the  law  of  the  said  colony  on  the  19lh  day  of  April,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  seventy-five,  shall 
be  and  continue  the  law  of  this  slate,  subject  to  such  alterations  and 
provisions  as  the  legislature  of  this  state  shall,  from  time  to  time, 
make  concerning  the  same.  That  such  of  the  said  acts  as  are  tem- 
porary shall  expire  at  the  limes  limited  for  their  duration  respec- 
tively'." 

Thereafter  the  New  York  Legislature,  pursuant  to  the 
constitutional  authority  then  vested  in  it,  proceeded  to 
pass  the  following  act : 

"CHAP.    XLVL 

"  An  Act  for  the  Amendment  of  the  Law,  and  the  better  Advancement 
of  Justice. 

"  Passed  2  7tli  February,  1788. 

"  XXXVn.  And  be  it  further  Enacted  by  the  Authority  aforesaid, 
that  from  and  after  the  first  Day  of  May  next,  none  of  the  Statutes 
of  England,  or  of  Great  Britain,  shall  operate  or  be  considered  as 
Laws  of  this  state. "(«) 

Provisions  similar  to  the  one  above  quoted  from  the 
Constitution  of  1777  were  inserted  in  our  later  State  Con- 
stitutions. 

But  it  is  not  necessary  to  attach  any  special  importance 
to  the  statute  of  1788,  It  is  sufficient  to  say,  that,  under 
the  doctrine  laid  down  by  the  highest  courts  in  the  differ- 

(a)  "  New  York  Laws,"  Jones  &  Varick.     Vol.  IL,  1787-89,  p.  283. 


138  EECENT   DECISIONS   AS   TO   CONTRACTS 

ent  States,  under  constitutional  provisions  substantially 
similar  to  that  of  New  York,  the  law  as  to  the  early 
English  statutes,  as  stated  by  Chief  Justice  Shaw  and  by 
Mr.  Bishop,  would  command  general  assent.  As  to  our 
common  law,  then,  prior  to  the  Rev^ised  Statutes,  the 
position  seems  very  simple,  and  somewhat  ironclad. 

The  next  question  is  this  :  In  view  of  the  position  un- 
der our  common  law  as  to  the  crime  of  conspiracy,  of  the 
fact  that  there  was  a  well-defined  class  of  criminal 
"Offences  against  Trade,"  of  the  fact,  that  all  those 
offences,  so  far  as  concern  the  present  question,  were  statu- 
tory, and  of  the  further  fact,  that  those  same  offences  had 
formerly  been  created  by  a  New  York  statute  which  had 
been  repealed,  is  it  a  reasonable  or  sound  interjDretation 
of  the  later  provision  in  the  Revised  Statutes,  to  hold 
that  that  provision  revived  those  old  statutory  crimes,  and 
made  criminal  an  act  which  was  lawful  at  our  common 
law,  and  which  involved  a  violation  of  no  legal  right  of 
any  member  of  the  entire  community. 

Here  it  becomes  necessary  to  cite  authority  as  to  the 
interpretation  of  statutes  which  change  the  common  law. 
Our  Court  of  Appeals,  in  a  leading  case,  held  the  rule  to 
be,  (a) 

"  that  no  such  change  was  intended  unless  the  statute  is  explicit  and 
clear  in  that  direction  (1  Kent,  Com.  463.  White  v.  Wager.  32 
Barb.  250  ;  affirmed  25  N.  Y.  328)  I  am  persuaded  that  a  careful 
analysis  of  the  section  referred  to  will  show  that  no  such  change,  so 
radical  and  dangerous,  was  either  made  or  intended,  and  that  the 
sole  scope  and  purpose  of  the  section  was  to  declare  in  explicit  terms 
the  existing  rule  of  the  common  law." 

The  doctrine  has  been  laid  down  by  Chancellor  Kent  as 
follows  \{b) 

"  Statutes  are  likewise  1o  be  construed  in  reference  to  the  princi- 
ples of  the  common  law  ;  for  it  is  not  to  be  preisumed  that  the  legis- 

(a)  People  v.  Palmer,  109  N.  Y.  110.  118.  See,  too,  People  v.  Fanshawe, 
137  N.  Y.  68,  73  ;  People  v.  Richards,  108  N.  Y.  137,  144. 

(b)  1  Kent,  Com.  464. 


IN"   RESTRAINT   OF   TRADE   OR   COMMERCE.  139 

lata  re  intended  to  make  any  innovation  upon  the  common  law,  further 
than  the  case  absolutelif  required.  This  has  been  the  languarje  of  the 
courts  in  every  age  ;  and  when  we  consider  tlie  constant,  velieinent, ' 
and  exalted  eulogy  which  the  ancient  sages  bestowed  upon  the  coni- 
nion  law  as  the  perfeclion  of  reason,  and  the  best  birthright  and 
noblest  inheritance  of  the  subject,  we  cannot  be  surprised  at  the 
great  sanction  given  to  this  rule  of  construction.  It  was  observed 
by  the  judges,  in  the  case  of  Stowell  v.  Zouche,  that  it  was  good  for 
the  expositors  of  a  statute  to  approach  as  near  as  they  could  to  the 
reason  of  the  common  law  ;  and  the  resolution  of  the  barons  of  the 
Exchequer,  in  Heydon^s  Case,  was  to  this  effect." 

In  connection  with  this  statement  of  the  rule,  it  is  well 
for  us  to  give  from  the  same  high  authority  its  reason  {a) 

"  The  common  law  includes  those  principles,  usages,  and  rules  of 
action  applicable  to  the  government  and  security  of  person  and  prop- 
erty, which  do  not  rest  for  their  authority  upon  any  express  and 
positive  declaration  of  the  ^^ill  of  the  legislature.  According  to  tlie 
observation  of  an  eminent  English  judge,  a  statute  law  is  the  will  of 
the  legislature  in  writing,  and  the  common  law  is  nothing  but  statutes 
worn  out  by  time  ;  and  all  the  law  began  by  the  consent  of  the  legis- 
lature. 

"  1.  Source  of  the  Common  Law. — This  is  laying  down  the  origin 
of  the  common  law  too  strictly.  A  great  proportion  of  tlie  rules  and 
maxims  which  constitute  the  immense  code  of  the  common  law  grew 
into  use  by  gradual  adoption,  and  received,  from  time  to  time,  the 
sanction  of  the  courts  of  justice,,  without  any  legislative  act  or  inter- 
ference. It  was  the  application  of  the  dictates  of  natural  justice  and 
of  cultivated  reason  to  particular  cases.  In  the  just  language  of  Sir 
Matthew  Hale,  the  common  law  of  England  is,  '  not  the  product  of 
the  wisdom  of  some  one  man,  or  society  of  men,  in  any  one  age  ; 
but  of  wisdom,  counsel,  experience,  and  observation  of  'many  ages  of 
tvise  and  observing  men.''  And  his  further  remarks  on  this  subject 
would  be  well  worthy  the  consideration  of  those  bold  projectors,  who 
can  think  of  striking  off  a  perfect  code  of  law  at  a  single  essay. 
'  Where  the  subject  of  any  law  is  single,  the  prudence  of  one  age 
may  go  far  at  one  essay  to  provide  a  tit  law  ;  and  yet,  even  in  the 
wisest  provisions  of  that  kind,  experience  shows  us  that  new  and  un- 

(a)  1  Kent,  Com.  471. 


140  EECENT   DECISIONS   AS   TO   CONTRACTS 

thought-of  emergencies  often  happen,  that  necessarily  require  new 
supplements,  abatements,  or  explanations.  But  the  body  of  laws 
that  concern  the  common  justice  applicable  to  a  great  kingdom  is 
vast  and  comprehensive,  consists  of  infinite  particulars,  and  must 
meet  with  various  emergencies,  and  therefore  requires  much  time 
and  much  experience,  as  well  as  much  wisdom  and  prudence,  suc- 
cessively to  discover  defects  and  inconveniences,  and  to  apply  apt 
supplements  and  remedies  for  them  ;  and  such  are  the  common  laws 
of  England,  namely,  the  'p^'oductions  of  much  ivisdom,  time,  and 
experience. ' ' 

In  view  of  these  declarations  of  a  well-established  prin- 
ciple, let  us  consider  the  language  of  the  statutory  pro- 
vision in  question.  The  statute  says  "  act  injurious  to 
trade  or  commerce, ' ' 

It  is  submitted,  that  the  only  reasonable  interpretation 
of  that  phrase  is,  that  it  means  an  act  which  violates 
some  legal  right,  of  some  individual  or  class  of  individ- 
uals, in  a  matter  concerning  trade  or  commerce. 

Let  us  now  see  what  was  the  construction  given  to  it 
by  the  Court  of  Appeals  in  People  v.  SJieldon.  And  in 
order  to  be  sure  of  giving  the  reasoning  of  the  Court 
with  accuracy,  it  will  be  well  to  quote  from  the  report. 
The  head  note  of  the  case  is  as  follows  : 

"  A  combination  between  independent  dealers  to  prevent  competi- 
tion between  themselves  in  the  sale  of  an  article  of  prime  necessity 
is,  in  the  contemplation  of  law,  an  act  inimical  to  trade  or  commerce, 
without  regard  to  what  may  be  done  under  and  in  pursuance  of  it, 
and  although  the  object  of  such  a  combination  was  merely  the  due 
protection  of  the  parties  against  ruinous  rivalry,  and  no  attempt  was 
made  to  charge  undue  or  excessive  prices  ;  where  it  appears  that  the 
parties  acted  under  the  agreement  an  indictment  for  conspiracy  is 
sustainable. 

"  Upon  trial  of  an  indictment  for  conspiracy  to  raise  the  price  of 
coal  at  retail  and  to  destroy  free  competition,  the  court  charged  the 
jury,  that  if  the  defendants  entered  into  an  organization  agreement 
for  the  purpose  of  controlling  the  price  and  managing  the  business 
of  the  sale  of  coal,  so  as  to  prevent  competition  in  price  between  the 
members  of  the  organization,  the  agreement  was  illegal,  and  if  the 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  141 

jury  found  this  was  their  intent,  and  that  the  price  was  raised  in 
pursuance  of  the  agreement,  tlie  crime  of  conspiracy  was  estahlished. 
Held,  no  error. 

"  The  court  was  requested,  but  refused,  to  charge  that  the  overt 
act  required  to  be  proved  to  sustain  a  conviction  for  conspiracy  must 
be  one  which  might  injuriously  affect  the  public,  and  that  the  act  of 
defendants  in  raising  the  price  of  coal,  was  not,  of  itself,  such  an 
overt  act.      Held,  no  error." 

The  opinion  (p.  261)  says  : 

"  The  fact  that  the  defendants  subscribed  the  constitution  and  by- 
laws of  the  '  Lockport  Coal  Exchange,'  and  participated  in  its  man- 
agement, was  not  controverted  on  the  trial.  Nor  is  it  denied  that 
the  object  of  the  organization  was  to  prevent  competition  in  the  price 
of  coal  among  the  retail  dealers,  acting  as  the  '  Lockport  Coal  ¥^\- 
change,'  by  constituting  the  exchange  the  sole  authority  to  fix  the 
price  which  should  be  charged  by  the  members  for  coal  sold  by  them, 
and  there  is  no  dispute  that  in  pursuance  of  the  plan  the  exchange 
did  proceed  to  fix  the  price  of  coal,  and  that  the  parties  to  the  agree- 
ment were  thereafter  governed  thereby  in  making  sales  to  their  cus- 
tomers. It  is  not  questioned  that  the  price  first  established  was  sev- 
enty-five cents  in  advance  of  the  then  maiket  price,  and  that  there 
was  afterward  a  still  further  advance.  The  defendants  gave  evidence 
tending  to  show  (and  of  this  there  was  no  contradiction),  that  before 
and  at  the  time  of  the  organization  of  the  exchange  the  excessive 
competition  between  the  dealers  in  coal  in  Lockport  had  reduced  the 
price  below  the  actual  cost  of  the  coal  and  the  expense  of  handling, 
and  that  the  business  was  carried  on  at  a  loss.  It  was  not  shown 
that  the  prices  of  coal,  fixed  from  time  to  time  by  the  exchange,  w^ere 
excessive  or  oppressive,  or  were  more  than  sufficient  to  afford  a  fair 
remuneration  to  the  dealers.  The  trial  judge  submitted  the  case  to 
the  jury  upon  the  proposition  that  if  the  defendants  entered  into  the 
organization  agreement  for  the  purpose  of  controlling  the  price  of 
coal  and  managing  the  bnsiness  of  the  sale  of  coal,  so  as  to  prevent 
competition  in  price  between  the  members  of  the  exchange,  the 
agreement  was  illegal,  and  that  if  the  jury  found  that  this  was  their 
intent,  and  that  the  price  of  coal  was  raised  in  pursuance  of  the 
agreement  to  ett'ect  its  object,  the  crime  of  conspiracy  was  established. 
The  correctness  of  this  proposition  is  the  main  question  in  the  case. 
If  a  combination  between  independent  dealers,  to  prevent  competi- 


142  RECENT  DECISIONS   AS   TO   CONTRACTS 

tion  belvveen  themselves  hi  the  sale  of  an  article  of  prime  necessity, 
is,  in  the  contemplation  of  the  law,  an  act  inunical  to  trade  or  com- 
merce, whatever  may  be  done  under  and  in  pursuance  of  it,  and 
althoiigh  the  oljject  of  the  combination  is  merely  the  due  j^votection  of 
the  2^(t'i'ties  to  it  against  ruinous  rivalry,  and  no  attempt  is  made  to 
charge  undue  or  excessive  prices,  then  the  indictment,  was  sustained 
by  'proof  On  the  other  hand,  if  the  validity  of  an  agreement,  hav- 
ing for  its  object  the  prevention  of  competition  between  dealers  in 
the  same  commodity,  depends  upon  what  may  be  done  under  the 
agreement,  and  it  is  to  be  adjudged  valid  or  invalid  according  to  the 
fact  whether  it  is  made  the  means  for  raising  the  price  of  a  com- 
modity beyond  its  normal  and  reasonable  value,  then  it  would  be 
difficult  to  sustain  this  conviction,  for  it  affirmatively  appears  that 
the  price  fixed  for  coal  by  the  exchange  did  not  exceed  what  ivould 
afford  a  reasonable  profit  to  the  dealers.  The  obtaining  by  dealers 
of  a  fair  and  reasonable  price  for  what  ttiey  sell  does  not  seem  to 
contravene  public  p)oUcy,  or  to  worh  an  injury  to  individuals.  On  the 
contrary,  the  general  interests  are  promoted  by  activity  in  trade, 
which  cannot  permanently  exist  without  reasonable  encouragement 
to  those  engaged  in  it.  Producers,  consumers  and  laborers  are  alike 
benefited  by  healthful  conditions  of  business." 

Nevertheless  the  Court  hekl,  as  above,  that  the  acts 
proved  were  in  contravention  of  the  Statute,  and  affirmed 
the  conviction. 

This  decision,  it  will  be  noted,  is  limited  by  its  terms 
to  the  case  of  a  combination  to  prevent  competition  in  the 
sale  of  an  article  of  "  prime  necessity."  It  does  not,  by 
its  terms,  go  so  far  as  to  hold  that  a  combination  to  raise 
prices,  or  to  prevent  competition,  as  to  merchandise  of 
any  and  all  classes,  is  a  crime. 

But  is  it  possible  here  to  draw  any  sound  legal  distinc- 
tion ? 

On  this  point  it  will  be  well  to  see  wherein  lay  the  es- 
sence of  the  crime,  according  to  the  opinion  of  the  Court. 
As  to  this,  the  Court  says  :  "  A  mere -agreement,  followed 
by  no  act,  is  insufficient.  The  overt  act  charged  in  the 
indictment,  and  proved,  was  the  raising  of  the  price 
of  coaV 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  143 

It  is  almost  supeifiuous  to  suggest  tlie  difRculty  of  sat- 
isfactorily determining  what  is,  and  what  is  not,  an  "  arti- 
cle of  prime  necessity,"  Whose  needs  are  to  be  the  crite- 
rion ?  Nearly  ever}^  article,  except  articles  of  mere  lux- 
ury, is,  at  one  time  or  another,  one  of  prime  necessity  to 
some  one.  And  shall  the  law  undertake  the  function  of 
deciding  whether  a  i3articular  intending  buyer  really  needs 
that  which  he  desires  to  purchase  I 

But  does  such  a  distinction  rest  upon  any  sound  legal 
basis  ? 

Let  us  consider  the  point  iirst  with  reference  to  the 
rights  of  the  owner,  the  seller.  Is  there  any  difference 
in  his  legal  property  rights,  in  the  case  of  staple  articles 
of  food  and  of  ordinary  merchandise  of  other  classes  '^  Is 
his  right  to  fix  his  own  selling  price,  or  his  right  to  say 
whether  he  will  sell  at  all,  any  different  in  the  one  case 
from  what  it  is  in  the  other  'i  Has  any  individual,  or  the 
State,  any  greater  right  to  limit  his  property  rights  in  the 
one  case  than  in  the  other  ? 

On  the  other  hand,  consider  the  case  of  the  would-be 
buyers.  Is  their  right  to  compel  a  sale,  or  to  fix  the 
seller's  selling  price  directly  or  indirectly,  at  all  different 
in  the  case  of  staple  food  products  from  their  right  to  do 
so  in  the  case  of  merchandise  of  other  classes  \ 

To  go  one  step  further  :  Can  any  one  state  any  sound 
legal  principle,  on  which  it  can  be  held,  that  the  legal 
rights  of  the  seller  of  food  products  differ  from  the  legal 
rights  of  the  sellers  of  the  labor  which  produces  them  i! 
The  common  law  is,  that  there  is  no  such  distinction.  The 
wisest  jurists  have  concluded,  that  any  such  distinction 
is  unwise  and  unjust.  But  we  are  now  considering  it  as 
a  question  of  mere  legal  principle.  Every  one  knows  that 
the  price  of  food  products,  as  is  the  case  with  the  prices 
of  nearly  all  classes  of  merchandise,  is  mainly  made  up  of 
the  cost  of  labor.  The  cost  of  corn  in  its  final  market  is, 
in  the  main,  made  up  of  the  cost  of  successive  sets  of 
laborers,  the  farmers  who  have  tilled  the  ground,  planted 
the  seed,  and  harvested  the  grain,  and  the  carriers  who 


144  EECEISTT   DECISIONS   AS   TO   CONTRACTS 

have  brought  it  to  market.  Now  where  is  the  ground 
for  any  sorincl  legal  distinction  between  the  legal  rights  of 
the  farmer  who  sells  the  grain  when  it  is  harvested,  and 
those  of  the  seller  in  its  final  market  ? 

But  it  may  be  said,  that  the  distinction  here  should  be 
between  honest,  hard-working  laborers  who  produce,  and 
sj)eculators  who  merely  gamble  on  the  needs  of  consumers. 

But  here  we  come  on  another  difficulty.  Every  farmer, 
every  laboring  j)roducer,  tries,  and  tries  rightly,  to  get 
for  his  product  the  highest  possible  price.  He  will  hold 
it  back  from  market,  if  he  thinks  that  thereby  he  can  get 
a  higher  price.  He  has  the  legal  right  so  to  do.  It  will 
be  generallj^  conceded  to-day,  that  the  merchant,  or 
middleman,  is  "  an  article  of  prime  necessity"  in  the 
world's  commerce.  Without  him  commerce  must  cease, 
and  production  by  the  farmer  must  cease.  jSow,  how 
are  we  to  draw  any  sound  legal  distinction  between  the 
right  of  the  farmer  to  hold  his  corn  for  a  higher  price, 
and  the  same  right  of  the  merchant,  who  has  bought  the 
corn  from  the  farmer,  with  all  the  property  rights 
inherent  therein  i  If  one  has  the  right  to  combine  with 
others  to  hold  grain  for  a  higher  price,  the  other  has  the 
same  right. 

But  let  us  take  it  from  a  still  different  standpoint.  In 
all  these  cases  which  have  gone  upon  the  theory  of  a 
necessity  for  protection  against  combinations  to  raise 
l^rices,  there  has  been  in  reality  a  complete  ignoring  of 
the  rights  of  sellers.  Possible  dangers  to  buyers  have 
been  in  reality  the  only  objects  of  the  solicitude  of  the 
courts. 

But  how  is  it  as  to  the  rights  of  sellers  ?  How  is  it, 
that  the  courts  are  under  any  greater  obligation  to  protect 
the  rights  of  buyers  than  of  sellers  ?  The  one  class  has 
precisely  the  same  right  to  the  protection  of  the  law  with 
the  other.  Even  if  it  were  the  fact,  that  the  community 
were  divisible  into  two  classes,  buyers  and  sellers,  the  one 
has  the  same  right  to  the  law's  fullest  protection  for 
its  i^roperty  with  the  other.     If  the  law  is  to  protect  buy- 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  145 

ers  against  unduly  high  prices,  it  is  under  an  equal  obliga- 
tion to  protect  sellers  against  unduly  low  prices.  As  for 
the  interest  of  "  the  public,"  the  interest  of  "  the  public" 
is  just  as  strong  that  sellers  should  make  good  sales  as 
that  buyers  should  make  good  purchases. 

But,  as  matter  of  fact,  every  member  of  the  community, 
who  is  engaged  in  labor  of  any  kind,  or  in  any  kind  of 
trade  or  commerce,  is  both  a  buyer  and  a  seller.  He  is  a 
seller  of  his  own  labor,  or  its  products.  He  is  at  the  same 
time  a  buyer  of  the  labor  of  other  men,  or  of  its  products. 
In  either  capacity,  he  has  the  same  legal  rights,  and  is 
entitled  to  the  same  measure  of  legal  protection.  And 
the  interest  of  the  community  is  to  have  men  as  well  paid 
in  the  one  capacity  as  in  the  other,  and  to  have  every  man 
well  paid  in  each  capacity. 

How  is  that  end  to  be  accomplished  ?  Can  it  be  accom- 
plished by  statute,  or  by  indictment,  or  by  a  combination 
of  the  two  ? 

All  human  experience  thus  far  conclusively  demon- 
strates, that  the  accomplishment  of  this  end  must  be  left 
to  the  parties  interested  in  each  separate  transaction  of 
sale,  the  buyer  and  the  seller.  They  know,  and  they  alone 
know,  the  facts  which  properly  enter  into  the  decision  of 
all  questions  of  price.  In  the  decision  of  every  question 
of  price  there  are  always  two  controlling  elements  :  they 
are  (1)  the  needs  of  the  buyer  ;  and  (2)  the  needs  of  the 
seller.  Those  two  elements  determine  the  question  of 
price— and  determine  it  conclusively — in  every  transac- 
tion of  sale.  Those  two  elements  can  be  justly  estimated 
by  only  two  persons  in  the  whole  world— the  high  con- 
tracting parties.  They  are  the  only  persons  who  are  in  a 
position  to  weigh  those  two  elements.  It  is  to  the  inter- 
est of  every  one,  of  the  buyer,  of  the  seller,  and  of  "  the 
public, "  that  the  decision  of  these  questions  of  value  and 
price  shall  be  left  to  the  parties  to  the  transaction,  and 
that,  in  making  that  decision,  those  two  parties  shall 
have  the  fullest  contractual  freedom. 

If  the  State  has  the  right,  or  the  duty,  of  protecting 


146  KECENT   DECISIONS    AS   TO    CONTRACTS 

buyers,  it  has  the  same  right,  and  the  same  duty,  of  pro- 
tecting sellers.  If  it  undertakes  to  do  either,  it  is  bound 
to  undertake  both. 

In  all  these  respects,  it  is  most  respectfully  submitted, 
there  is  no  possible  sound  legal  distinction  as  to  the  rights 
and  duties,  of  both  individuals  and  the  State,  between  the 
sellers  of  labor  and  the  sellers  of  merchandise,  or  between 
the  sellers  of  merchandise  of  "  prime  necessity"  and  the 
sellers  of  merchandise  of  ordinary  kinds.  The  law,  that 
is,  our  law,  under  our  forms  of  constitutional  government, 
gives  the  same  property  rights,  to  both  classes  of  citizens, 
and  to  both  classes  of  property. 

If,  then,  as  to  the  matters  here  under  consideration,  no 
sound  legal  distinction  is  to  be  drawn  between  articles  of 
"  prime  necessity"  and  other  merchandise,  it  remains  for 
us  to  consider  the  general  soundness  of  the  construction 
given  to  the  New  York  statute  by  the  Court  of  Appeals 
in  the  People  v.  Sheldon. 

The  soundness  of  that  construction  involves  the  con- 
sideration of  the  chief  essential  element  of  a  crime,  under 
the  English  and  American  law. 

As  to  that,  the  proposition  here  submitted,  and  the  one 
which  lies  at  the  foundation  of  this  entire  discussion,  is 
this  :  that  every  "  crime,"  under  the  English  or  American 
law,  involves,  at  least  in  its  final  consummation,  the  vio- 
lation of  some  legal  right,  of  some  individual,  or  class  of 
individuals.  Some  crimes  consist  only  in  the  initial  stage 
of  a  violation  of  a  legal  right.  Such  is  always  the  case 
in  a  conspiracy,  which  has  not  gone  so  far  as  an  overt  act. 
Bnt  no  act  constitutes  a  crime  in  its  initial  stage,  unless 
that  act,  in  its  final  consummation,  constitutes  a  violation  of 
some  legal  right,  of  some  individual,  or  class  of  individuals. 

This  i^osition  is  so  fundamental  that  it  will  be  well  to 
give  at  this  point  what,  under  the  circumstances,  may  be 
deemed  an  authoritative  statement  of  it  from  Sir  Will- 
iam Blackstone.  In  his  consideration  of  ' '  Public 
Wrongs"  he  says  :  (a) 

(a)  4  Blackstone,  Com.  5. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  147 

''  In  all  cases  the  crime  includes  an  injury  ;  evcnj  pnhlic  offence  is 
also  a  private  vn-ong,  and  somewhat  more  ;  it  affects  the  individual, 
and  it  likewise  affects  the  comrnnnity.  Thus  treason  in  imao-inino'  the 
king's  death  involves  in  it  conspiracy  against  an  individual,  which  is 
also  a  civil  injury  ;  but,  as  this  species  of  treason  in  its  consequences 
principally  tends  to  the  dissolution  of  government,  and  the  destruc- 
tion thereby  of  the  order  and  peace  of  society,  this  denominates  it  a 
crime  of  the  highest  magnitude.  Murder  is  an  injury  to  the  life  of 
an  individual ;  but  the  law  of  society  considers  principally  the  loss 
which  the  state  sustains  by  being  deprived  of  a  member,  and  the 
pernicious  exatnple  thereby  set  for  others  to  do  the  like.  Robbery 
may  be  considered  in  the  same  view  :  it  is  an  injury  to  private  prop- 
erty ;  but  were  that  all,  a  civil  satisfaction  in  damages  might  atone 
for  it  ;  the  public  mischief  is  the  thing,  for  the  prevention  of  which 
our  laws  have  made  it  a  capital  offence.  In  these  gross  and  atrocious 
injuries  the  private  wrong  is  swallowed  up  in  the  public  :  we  seldom 
hear  any  mention  made  of  satisfaction  to  the  individual  ;  the  satis- 
faction to  tlie  community  being  so  very  great.  And  indeed,  as  the 
public  crime  is  not  otherwise  avenged  than  by  forfeiture  of  life  and 
property,  it  is  impossible  afterwards  to  make  any  reparation  for  the 
private  wrong  ;  which  can  only  be  had  from  the  body  or  goods  of 
the  aggressor.  But  there  are  crimes  of  an  inferior  nature,  in  which 
the  public  punishment  is  not  so  severe,  but  it  aifords  room  for  a 
private  compensation  also  ;  and  herein  the  distinction  of  crimes 
from  civil  injuries  is  very  apparent.  For  instance,  in  the  case  of 
battery,  or  beating  another,  the  aggressor  may  be  indicted  for  this 
at  the  suit  of  the  king,  for  disturbing  the  public  peace,  and  be  pun- 
ished criminally  by  line  and  imprisonment  ;  and  the  party  beaten 
may  also  have  his  private  remedy  by  action  of  trespass  for  the  injury 
which  he  in  particular  sustains,  and  recover  a  civil  satisfaction  in 
damages.  So  also,  in  case  of  a  public  nuisance,  as  digging  a  ditcli 
across  a  highway,  this  is  punishable  by  indictment,  as  a  common 
offence  to  the  whole  kingdom  and  all  his  majesty's  subjects  ;  but  if 
any  individual  sustains  any  special  damage  thereby,  as  laming  his 
horse,  breaking  his  carriage,  or  the  like,  the  offender  may  be  com- 
pelled to  make  ample  satisfaction,  as  well  for  the  private  injnrv  as 
for  the  public  wrong." 

To  the  same  effect  is  the  dehnition  of  a  crime  given  by 
Serjeant  Stephen  in  his  "New  Commentaries  on  the 
Laws  of  England."     He  says  : 


148  RECENT   DECISIONS    AS   TO   CONTRACTS 

' '  A  crime  is  the  violation  of  a  right,  when  considered  with  refer- 
ence to  the  evil  tendency  of  such  violation,  as  regards  the  commimity 
at  large.  The  distinction  of  public  wrongs  from  private,  that  is  to 
say,  of  crimes  from  civil  injuries,  seems  upon  examination  princi- 
pally to  consist  in  this,  that  privale  wrongs  (or  civil  injuries)  are  an 
infringement  ov  privation  of  \\\Q  civil  rights  which  belong  to  individ- 
uals, considered  merely  as  individuals,  while  public  wrongs  (or  crimes 
and  misdemeanors)  are  a  violation  of  the  same  rights,  considered  with 
reference  to  their  effect  on  the  community  in  its  aggregate  cajjacity. 
As  if  I  detain  a  field  from  another  man,  to  which  the  law  has  given 
him  a  right — this  is  a  civil  injury  and  not  a  crime  ;  for  here  only 
the  right  of  the  individual  is  concerned,  and  it  is  immaterial  to  the 
public  which  of  us  is  in  possession  of  the  land.  But  treason,  mur- 
der, and  robbery  are  properly  ranked  among  crimes  ;  since,  besides 
the  injury  done  to  individuals,  they  strike  at  the  very  being  of 
society  ;  which  cannot  possibly  subsist,  where  acts  of  this  sort  are 
suffered  to  escape  with  impunity.  In  all  cases,  crime  includes  an  in- 
jury, that  is,  every  public  offence  is  also  a  j^rivate  ivrong,  for  while  it 
affects  the  individual,  it  affects  also  the  community.  Thus  treason, 
in  imagining  the  sovereign's  death,  involves  in  it  a  conspiracy 
against  an  individual,  which  is  also  a  civil  injury  ;  but  as  this  species 
of  treason  in  its  consequences  principally  tends  to  the  dissolution  of 
government,  and  the  destruction  thereby  of  the  order  and  peace  of 
society — this  raises  it  to  a  crime  of  the  highest  magnitude.  Murder 
is  an  injury  to  the  life  of  an  individual ;  but  the  law  of  society  con- 
siders principally  the  loss  which  the  State  sustains  by  being  deprived 
of  a  member,  and  the  pernicious  example  thereby  set  for  others  to 
do  the  like.  Robbery  is  an  injury  to  j)rivate  property  ;  but  were 
that  all,  a  civil  satisfaction  in  damage  might  atone  for  it,  the  2)ublic 
mischief  is  the  thing  for  the  prevention  of  which  our  laws  have 
made  it  a  felonious  offence." 

The  statement  of  the  law  here  quoted  needs  a  slight 
modification.  There  are  crimes,  chielly  statiitory,  which 
do  not  "  include  an  injury,"  which  are  not  "  also  a  pri- 
vate wrong."  For  instance,  the  whole  class  of  criminal 
attempts  which  are  made  crimes  by  statute(a)  are  often 
not  "private  wrongs,"  for  the  reason  that  they  do  not 

(a)  See  People  v.  Bush,  4  Hill,  133.     3  New  York  Rev.  Stat.  698,  g  3. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  149 

get  far  enough  on  the  road  to  accomplishment,  to  work 
the  injury  to  the  individual,  which  would  result,  if  the 
attempt  had  hnal  success.  So,  too,  conspiracies,  though 
crimes,  may  in  some  cases  not  be  private  wrongs,  for 
the  reason  that  they  only  reach  the  stage  of  combination 
or  agreement,  and  do  not  result  in  the  overt  act,  which,  if 
accomplished,  would  be  a  "  private  wrong."  Many  acts 
are  made  crimes,  merely  because  they  are  initial  steps 
toward  a  final  crime,  which  is  a  "  private  wrong." 

But  it  is  submitted,  that  Serjeant  Stephen's  state- 
ment is  strictly  accurate,  with  this  modification,  that 
is,  that  "  every  crime  is  also  a  private  wrong,  or  is  an 
initial  step  toward  the  accomplishment  of  a  private 
wrong." 

An  apparent  exception  to  this  statement  may  be  found 
in  a  class  of  crimes  where  the  injury  is  commonly  consid- 
ered as  an  injury  to  the  whole  community,  or,  as  the 
phrase  is,  to  the  public,  such  as  injuries  to  the  public 
health,  or  to  the  public  morals.  But  in  all  these  cases,  it 
will  be  found  that  there  is  no  injury  to  the  public,  unless 
there  is  an  injury  to  the  single  individuals  who  compose 
the  public. 

Applying  this  part  of  our  discussion  to  the  crime  of 
conspiracy,  no  agreement  or  combination  of  individuals 
can  constitute  a  crime,  unless  the  act  contemplated  by 
the  combination,  when  accomplished,  will  be  a  legal  in- 
jury to  some  individual,  unless  it  will  deprive  some  indi- 
vidual of  some  legal  right.  In  other  w^ords,  there  can  be 
no  legal  injury  to  the  public,  unless  there  will  be  a  legal 
injury  to  some  individual,  or  to  some  class  of  individuals, 
from  the  act  which  is  the  object  of  the  agreement  or 
combination. 

Apply  this  to  a  combination  to  raise  prices.  In  the 
absence  of  any  statute  fixing  prices,  or  compelling  indi- 
viduals to  sell  at  prices  fixed,  or  to  be  fixed,  no  iDrivate 
individual  has  a  legal  right  to  have  the  owner  of  mer- 
chandise sell  it  to  him  at  any  fixed  price,  or  at  any  price 
whatever.     Under  our  system  of  law,  with  the  constitu- 


150  RECENT   DECISIONS   AS   TO   CONTRACTS 

tional  provisions  everywhere  in  force,  it  is  submitted, 
that  neither  the  legislature,  nor  any  public  official,  or 
body  of  j)ublic  officials,  can  fix  the  prices  to  be  charged 
for  either  labor  or  merchandise  in  any  private  employ- 
ment. For  that  would  amount,  in  law,  to  a  taking  of  pri- 
vate property  for  private  use.  No  power  in  the  state  can 
take  the  property  of  one  individual  for  the  use  of  another 
individual,  at  any  price  whatever.  Private  property  can 
be  taken  for  public  use,  on  making  just  compensation. 
But  it  cannot  be  taken  for  private  use  on  any  terms. 

This  point  is  so  fundamental  and  essential,  that  it  may 
be  well  to  quote  from  the  leading  New  York  authority 
thereon,  although  it  is  hardly  possible  that  any  lawyer 
should  here  raise  a  question.  The  language  of  Mr.  Jus- 
tice Bronson  in  Taylor  v,  Porter{a)  is  as  follows  : 

"  I  will  not  stop  to  enquire  whether  the  damages  must  not  be  paid 
before  the  title  will  pass.  The  difficulty  lies  deeper  than  that. 
Whatever  sum  may  be  tendered,  or  however  ample  may  be  the  provi- 
sion for  compensation,  the  question  still  remains,  can  the  legislature 
compel  any  man  to  sell  his  land  or  his  goods,  or  any  interest  in  them, 
to  his  neighbor,  when  the  property  is  not  to  be  applied  to  public  use  ? 
Or,  must  it  be  left  to  the  owner  to  say,  when,  to  whom,  and  upon 
what  terms  he  will  part  with  his  property,  or  whether  he  will  part 
with  it  at  all  ? 

"  The  right  to  take  private  property  iov  jiM'ic  purposes  is  one  of 
the  inherent  attributes  of  sovereignty,  and  exists  in  every  independent 
government.  Private  interests  must  yield  to  public  necessity.  But 
even  this  right  of  eminent  domain  cannot  be  exercised  without  mak- 
ing just  compensation  to  the  owner  of  the  property.  (Const.  Art.  7, 
§  6.)  And  thus,  what  would  otherwise  be  a  burden  upon  a  single 
individual,  has  been  made  to  fall  equally  upon  every  member  of  the 
state.  But  there  is  no  provision  in  the  constitution  that  just  com- 
pensation shall  be  made  to  the  owner  when  his  property  is  taken  for 
private  purposes  ;  and  if  the  power  exists  to  take  the  property  of  one 
man  without  his  consent  and  transfer  it  to  another,  it  may  be  exer- 
cised without  any  reference  to  the  question  of  compensation.  The 
power  of  making  bargains  for  individuals  has  not  been  delegated  to 

(a)  Taylor  v.  Porter,  4  Hill,  140,  143. 


IN    RESTRAINT   OF   TRADE   OR   COMMERCE.  151 

any  branch  of  tlie  government,  and  if  tlie  title  of  xV.  can,  without  his 
fault,  be  transferred  to  B.,  it  may  as  well  be  done  without  as  with  a 
consideration.  This  view  of  the  question  is  sufficient  to  put  us  upon 
the  enquiry,  where  can  the  power  be  found  to  pass  such  a  law  as  that 
under  which  the  defendants  attempt  to  justify  their  entry  upon  the 
plaintiff's  land.  It  is  not  to  be  presumed  that  such  a  power  exists, 
and  those  who  set  it  up  should  tell  where  it  may  be  found. 

'*  Under  our  form  of  government  the  legislature  is  not  supreme. 
It  is  only  one  of  the  organs  of  that  absolute  sovereignty  which  resides 
in  the  whole  body  of  the  people.  Like  other  departments  of  the 
government,  it  can  only  exercise  such  powers  as  have  been  delegated 
to'it  ;  and  when  it.  steps  beyond  that  boundary,  its  acts,  like  tliose 
of  the  most  humble  magistrate  in  the  state  who  transcends  his  juris- 
diction, are  utteily  void.  Where,  then,  shall  we  find  a  delegation  of 
power  to  the  legislature  to  take  the  property  of  A.  and  give  it  to  B., 
either  with  or  without  compensation  ?  Only  one  clause  of  the  con- 
stitution can  be  cited  in  support  of  the  power,  and  that  is  the  first 
section  of  the  first  article,  where  the  people  have  declared  that  '  the 
legislative  power  of  this  state  shall  be  vested  in  a  senate  and  assem- 
bly.' It  is  readily  admitted  that  the  two  houses,  subject  only  to  the 
qualified  negative  of  the  governor,  possess  all  '  the  legislative  power 
of  this  state  ;  '  but  the  question  immediately  presents  itself,  what  is 
that  '  legislative  power,'  and  how  far  does  it  extend  ?  Does  it  reach 
the  life,  liberty  or  property  of  a  citizen  who  is  not  charged  with  a 
transgression  of  the  laws,  and  when  the  sacrifice  is  not  demanded  by 
a  just  regard  for  the  public  welfare  ?  In  Wilkinson  v.  Leland 
(2  Peters,  657),  Mr.  Justice  Story  says  :  '  The  fundamental  maxims 
of  a  free  government  seem  to  require  that  the  rights  of  personal  lib- 
erty and  private  property  should  be  held  sacred.  At  least,  no  court 
of  justice  in  this  country  would  be  warranted  in  assuming  that  the 
power  to  violate  and  disregard  them — a  power  so  repugnant  to  the 
common  principles  of  justice  and  civil  liberty — lurked  under  anygen- 
eial  grant  of  legislative  authority  or  ought  to  l)e  implied  from  any 
general  expressions  of  the  will  of  the  peoi)le.  The  people  ought  not 
to  be  presumed  to  part  with  rights  so  vital  to  their  security  and  well 
being,  without  very  strong  and  direct  expressions  of  such  an  inten- 
tion.' He  added  :  *  We  know  of  no  case  in  which  a  legislative  act 
to  transfer  the  property  of  A.  to  B.  without  his  consent,  has  ever 
been  held  a  constitutional  exercise  of  legislative  power  in  any  state  in 
the  union.     On  the  contrary,  it  has  been  constantly  resisted  as  incon- 


152  RECENT   DECISIONS   AS   TO   CONTRACTS 

sistent  with  just  principles,  by  every  judicial  tribunal  in  which  it  has 
been  attempted  to  be  enforced.'  (See  also  2  Kent's  Com.  13,340, 
and  cases  there  cited.)  The  security  of  life,  liberty,  and  property, 
lies  at  the  foundation  of  the  social  compact  ;  and  to  say  that  this 
grant  of  ^  legislative  power  '  includes  the  right  to  attack  private  prop- 
erty, is  equivalent  to  saying  that  the  people  have  delegated  to  their 
servants  the  power  of  defeating  one  of  the  great  ends  for  which  the 
government  was  established.  If  there  was  not  one  word  of  qualifica- 
tion in  the  whole  instrument ,  I  should  feel  great  difficulty  in  bringing 
myself  to  the  conclusion  Ihat  the  clause  under  consideration  had. 
clothed  the  legislature  with  despotic  power  ;  and  such  is  the  extent 
of  their  authority  if  they  can  take  the  property  of  A.,  either  with  or 
without  compensation,  and  give  it  to  B.  '  The  legislative  power  of 
this  state  '  does  not  reach  to  such  an  unwarrantable  extent.  Neither 
life,  liberty  nor  property,  except  when  forfeited  by  crime,  or  when 
the  latter  is  taken  for  public  use,  falls  within  the  scope  of  the  power. 
Such,  at  least,  are  my  present  impressions." 

The  owner  of  property  has  the  right  to  decide  whether 
he  will  sell  his  property  at  all,  and  if  he  sells,  to  fix  the 
price.  That  price  he  has  the  lawful  right  to  fix,  in  any 
way  he  sees  fit,  on  the  exercise  of  his  own  will,  or 
under  a  contract  with  other  men.  The  right  of  every 
free  citizen  to  restrict,  by  contract,  his  right  to  dispose  of 
his  own  labor  is  beyond  question.  He  may  dispose  of  it 
for  one  year,  or  two,  at  one  price,  or  another.  He  may 
contract  to  work  at  the  bidding  of  another,  for  a  longer  or 
shorter  term.  His  right  of  disposition  is  the  same  over 
all  his  other  property — over  his  lands,  or  his  merchan- 
dise. Some  of  his  contracts  the  law  may  refuse  to  en- 
force. But  none  of  them  are  crimes,  unless  they  involve 
injury  to  the  legal  rights  of  other  individuals.  The  old 
statutes  were  strictly  logical,  when  they  lixed  the  prices 
of  different  classes  of  merchandise,  in  that  they  also  pro- 
vided the  remedy  for  the  private  individual,  to  compel 
sales  to  him  at  those  prices.  When,  however,  the  old 
statutes  did  that,  they  really  provided  the  legal  ma- 
chinery for  taking  the  private  property  of  one  set  of 
individuals   for   the    private  use  of  other  individuals. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  153 

Unless  that  can  lawfully  be  done,  then  a  refusal  by  the 
owner  of  merchandise  to  sell  at  any  price  but  his  own, 
or  a  refusal  to  sell  at  any  price  whatever,  violates  no  legal 
right  of  any  other  individual,  and  violates  no  legal  right 
of  that  combination  of  individuals  which  we  term  the 
public. 

Moreover,  if  every  individual  has  the  right  to  fix  his 
own  price  by  a  separate  act  of  his  own  will,  he  has  a  right 
to  fix  it  by  contract  with  other  men  ;  and  to  precisely  the 
same  extent  as  he  has  the  right  to  fix  the  price  of  his  own 
labor  by  contract  with  other  men.  Every  individual  has 
the  right  to  fix  the  price  of  his  own  labor  by  contract 
with  other  men,  unless  restrained  by  some  constitutional 
statute.  Every  individual  has  precisely  the  same  right 
to  fix  the  price  of  his  own  merchandise  by  contract  with 
other  men.  Concededly  he  has  this  right,  under  the  or- 
dinary contract  of  partnership.  But  where  is  it  possible 
to  draw  a  reasonable  legal  distinction,  between  his  right 
to  fix  it  under  the  contract  of  ordinary  partnership,  and 
under  a  contract  of  partial  partnership,  which  covers  only 
sale  i:>rices  t 

That  this  is  the  law  as  to  combinations  of  laborers  was 
decided  by  the  Supreme  Court  of  Massachusetts  in  the 
case  of  CommioniDealth  v.  Hunt^{a)  where  the  following 
language  is  used  by  Chief  Justice  Shaw  : 

"  Without  attempting  to  review  and  reconcile  all  the  cases,  we  are 
of  opinion,  that  as  a  general  description,  tliough  perhaps  not  a  pre- 
cise and  accurate  definition,  a  conspiracy  must  be  a  combination  of 
two  or  more  persons,  by  some  concerted  action,  to  accomplish  some 
criminal  or  unlawful  purpose,  or  to  accomplish  some  purpose,  not  in 
itself  criminal  or  unlawful,  by  criminal  or  unlaviful  means.  We  use 
the  terms  criminal  or  unlawful,  because  it  is  manifest  that  many  acts 
are  unlawful,  which  are  not  punishable  by  indictment  or  other  public 
prosecution  ;  and  yet  there  is  no  doubt,  we  think,  that  a  combination 
by  members  to  do  them  would  be  an  unlawful  conspiracy,  and  pun- 
ishable by  indictment." 

(a)  Comm.  v.  Hunt,  4  Mete.  111. 


154  EECENT   DECISIONS   AS   TO   CONTRACTS 

"  Stripped  then  of  these  introductory  recitals  and  alleged  injurious 
consequences,  and  of  the  qualifying  epithets  attached  to  the  facts, 
the  averment  is  this  ;  that  the  defendants  and  others  formed  them- 
selves into  a  society,  and  agreed  not  to  work  for  any  person,  who 
should  employ  any  journeyman  or  other  person,  not  a  member  of 
such  society,  after  notice  given  him  to  discharge  such  workman. 

"  The  manifest  intent  of  the  association  is,  to  induce  all  those  en- 
gaged in  the  same  occupation  to  become  members  of  it.  Such  a 
puipose  is  not  unlawful.  It  would  give  them  a  power  which  might 
be  exerted  for  useful  and  honorable  purposes,  or  for  dangerous  and 
pernicious  ones.  If  the  latter  were  the  real  and  actual  object,  and 
susceptible  of  proof,  it  sho'ild  have  been  specially  charged.  Such  an 
association  might  be  nsed  to  afEord  each  other  assistance  in  times  of 
poverty,  sickness  and  distress  ;  or  to  raise  their  intellectual,  moral 
and  social  condition  ;  or  to  make  improvement  in  their  art  ;  or  for 
other  proper  purposes.  Or  the  association  might  be  designed  for 
purposes  of  oppression  and  injustice.  But  in  order  to  charge  all 
those,  who  become  members  of  an  association,  with  the  guilt  of  a 
criminal  conspiracy,  it  must  be  averred  and  proved  that  the  actual,  if 
not  the  avowed  object  of  the  association,  was  criminal.  An  associa- 
tion may  be  formed,  the  declared  objects  of  which  are  innocent  and 
laudable,  and  yet  they  may  have  secret  articles,  or  an  agreement 
communicated  only  to  the  members,  by  which  they  are  banded  to- 
gether for  purposes  injurious  to  the  peace  of  society  or  the  rights  of 
its  members.  Such  would  undoubtedly  be  a  criminal  conspiracy,  on 
proof  of  the  fact,  however  meritorious  and  praiseworthy  the  declared 
objects  might  be.  The  law  is  not  to  be  hoodwinked  by  colorable 
pretences.  It  looks  at  truth  and  reality,  through  whatever  disguise  it 
may  assume.  But  to  make  such  an  association,  ostensibly  innocent, 
the  subject  of  prosecution  as  a  criminal  conspiracy,  the  secret  agree- 
ment, which  makes  it  so,  is  to  be  averred  and  proved  as  the  gist  of 
the  offence.  But  when  an  association  is  formed  for  purposes  actually 
innocent,  and  afterward  its  powers  are  abused,  by  those  who  have 
the  control  and  management  of  il,  to  purposes  of  oppression  and  in- 
justice, it  will  be  criminal  in  those  who  thus  misuse  it,  or  give  con- 
sent thereto,  but  not  in  the  other  members  of  the  association.  In 
this  case,  no  such  secret  agreement,  varying  the  objects  of  the  asso- 
ciation from  those  avowed,  is  set  forth  in  this  count  of  the  indict- 
ment. 

"  Nor  can  we   perceive  that  the  objects  of  this  association,  what- 


IN   KESTRAINT   OF   TRADE   OR   COMMERCE.  155 

ever  lliey  may  have  been,  were  to  be  attained  by  criminal  means. 
The  means  which  they  proposed  to  employ,  as  averred  in  this  connt, 
and  which,  as  we  are  now  to  presume,  were  established  by  the  {)roof, 
were,  that  they  would  not  work  for  a  person,  who,  after  due  notice, 
should  employ  a  journeyman  not  a  member  of  their  society.  Sup- 
posing the  object  of  the  association  to  be  laudable  and  lawful,  or  at 
least  not  unlawful,  are  these  means  criminal  ?  The  case  supposes 
that  these  persons  are  not  bound  by  contract,  but  free  to  work  for 
whom  they  please,  or  not  to  work,  if  they  so  prefer.  In  this  state  of 
things,  toe  cannot  ])e)xeive,  timt  it  is  criminal  for  men  to  agree  to- 
gether to  exercise  their  own  acknowledged  rights,  in  such  a  vmnner  as 
best  to  subserve  their  own  interests.  One  way  to  test  this  is,  to  con- 
sider the  effect  of  such  an  agreement,  where  tl)e  object  of  the  as- 
sociation is  acknowledged  on  all  hands  to  be  a[  laudable  one.  Sup- 
pose a  class  of  workmen,  impressed  with  the  manifold  evils  of  intem- 
perance, should  agree  with  each  other  not  to  work  in  a  shop  in  which 
ardent  spirit  was  furnished,  or  not  to  work  in  a  shop  with  any  one 
who  used  it,  or  not  to  work  for  an  employer,  who  should,  after  no- 
tice, employ  a  journeyman  who  habitually  used  it.  The  consequences 
might  be  the  same.  A  workman,  who  should  still  persist  in  the  use 
of  ardent  spirit,  would  find  it  more  difficult  to  get  employment  ;  a 
master  employing  such  an  one  might,  at  times,  experience  incon- 
venience in  his  work,  in  losing  the  services  of  a  skilful  but  intemper- 
ate workman.  Still  it  seems  to  us,  that  as  the  object  would  be  law- 
ful, and  the  means  not  unlawful,  such  an  agreement  could  not  be  pro- 
nounced a  criminal  conspiracy. 

"  From  this  count  in  the  indictment,  we  do  not  understand  that  the 
agreement  was,  that  the  defendants  would  refuse  to  work  for  an  em- 
ployer, to  whom  they  were  bound  by  contract  for  a  certain  time,  in 
violation  of  that  contract  ;  nor  that  they  would  insist  that  an  em- 
ployer should  discharge  a  workman  engaged  by  contract  for  a  certain 
time,  in  violation  of  such  contract.  It  is  perfectly  consistent  with 
everything  stated  in  this  count,  that  the  effect  of  the  agreement  was, 
that  when  tliey  were  free  to  act,  they  would  not  engage  with  an  em- 
ployer, or  continue  in  his  employment,  if  such  employer,  when  free 
to  act,  should  engage  with  a  workman,  or  continue  a  workman  in  his 
employment,  not  a  member  of  the  association." 

The  same  view  was  taken  by  the  Royal  Commission  to 
inquire  into  the  working  of  tlie  Master  and  Servant  Act, 


156  RECENT   DECISIONS   AS   TO   CONTRACTS 

1867,  and  of  the  Criminal  Law  Amendment  Act  (34  and 
35  Vict.,  cap.  32)  appointed  March  19th,  1874,  as  shown 
by  the  following  extract  from  its  Report,  quoted  in  Ar- 
nold's "  Employers  and  Workmen"  (p.  50) : 

"  '  (64)  All  that,  as  it  appears  to  us,  the  law  has  to  do,  over  and 
above  any  protection  that  ma}'  be  required  for  classes  unable  to  pro- 
tect themselves,  such  as  women  and  children,  is  to  secure  a  fair  field 
for  the  unrestricted  exercise  of  industrial  enterprise.  It  should 
recognize  the  right  in  the  labourer  to  dispose  of  his  labour,  the  capi- 
talist of  his  capital,  and  the  employer  of  his  productive  powers,  in 
whatever  manner  each  of  them,  acting  either  individually  or  in  asso- 
ciation u'ith  others,  may  deem  for  his  own  interest  ;  and  that  ivith- 
out  reference  to  the  question  whether  he  is  acting  wisely  for  his  own 
interest  or  advantageously  to  the  public,  or  the  contrary.  The  interest 
of  the  public  loill  be  best  consulted  by  allowing  each  of  these  parties  to 
do  ivhat  he  thinks  best  for  himself  without  further  interference  of  the 
law  than  may  be  necessary  to  protect  the  rights  of  others.^  " 

All  the  definitions  of  the  crime  of  conspiracy,  that  have 
ever  been  made  by  any  competent  authority,  insist  on  the 
point,  that  the  combination,  or  agreement,  must  be  to  do 
some  act  that  is  unlawful,  either  to  compass  an  unlawful 
end,  or  to  compass  a  lawful  end  by  unlawful  means.  But 
at  one  point  or  another  the  combination,  or  agreement, 
must  contemplate  an  act,  which  violates  some  legal  right. 
If  it  is  necessary  to  cite  any  further  authority  to  this 
point,  it  is  sufficient  to  refer  to  the  decision  of  the  United 
States  Supreme  Court  in  Pettibone  v.  United  States, {a) 
where  the  following  language  is  employed  by  Chief 
Justice  Fuller  in  delivering  the  opinion  of  the  Court : 

"  A  conspiracy  is  sufficiently  described  as  a  combination  of  two 
or  more  persons  by  concerted  action,  to  accomplish  a  criminal  or 
unlawful  purpose,  or  some  purpose  not  in  itself  criminal  or  unlawful, 
by  criminal  or  unlawful  means." 

Now,  the  mere  raising  of  prices  has  never  been  held  to 
be  a  violation  of  any  legal  right,  except  under  those  early 
statutes  which  have  been  referred  to  in   the  preceding 

{a)  148  U.  S.  203. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  157 

chapters  of  this  work.  Yet  the  raising  of  prices  is  the 
onl}^  act,  which  is  in  the  conremphition  of  the  agree- 
ment in  People  v.  Sheldon,  whether  as  means  or  end. 
There  is  nothing  in  the  entire  case,  from  its  beginning 
to  its  end,  so  far  as  concerns  the  questions  here  under 
consideration,  except  an  agreement  to  raise  prices.  The 
Court  speaks  of  a  "  conspiracy."  With  all  possible 
deference,  the  use  of  that  teim  involves  a  begging  of  the 
whole  question.  The  only  "  conspiracy"  in  the  case  con- 
sists in  the  agreement ;  and  the  only  agreement  is  the 
agreement  to  raise  prices.  Unless,  then,  the  raising  of 
jDrices  is  a  violation  of  the  legal  right  of  some  one,  there 
is  in  the  case,  either  civilly  or  criminally,  no  element  of 
the  unlawful,  either  in  means  or  end. 

In  a  vagne  popular  sense,  it  may  be  said,  that  the 
interests  of  the  public  require  that  trade  and  commerce 
be  free,  that  therefore  competition  be  free  ;  and,  con- 
sequently, that  anything  which  restricts  the  freedom  of 
competition  restricts  the  freedom  of  trade  and  commerce, 
and  therefore  works  an  injury  to  the  public. 

In  a  vague  popular  sense,  this  may  be  true.  But  we 
are  here  dealing  with  legal  rights,  and  legal  injuries. 
My  proposition  is,  that  the  public  is  deprived  of  no  legal 
right,  unless  some  individual  is  deprived  of  a  legal  right ; 
that  no  individual  is  deprived  of  a  legal  right  by  the  act 
of  the  owner  of  merchandise  in  selling  on  his  own  terms, 
or  in  refusing  to  sell  on  any  terms,  whether  his  act  is  the 
result  of  his  own  separate  volition  of  the  moment,  or  his 
volition  of  a  former  moment  in  making  a  contract  with 
others.  He  has  the  full  right  under  the  law  to  do  either, 
to  exercise  his  volition  in  either  one  of  the  two  ways, 
either  by  fixing  his  terms  independently,  or  under  a  con- 
tract with  other  men. 

But  what  is  this  so-called  right  of  "  the  public,"  as  to 
freedom  of  competition  I  Who  is  there,  that  has  the 
legal  right — that  two  sellers  of  merchandise  shall  com- 
pete I  What  individual  has  any  such  right  i  What  com- 
bination of  individuals  has  any  such  right  i    How  does 


158  KECETSTT  DECISIONS   AS   TO   CONTRACTS 

that  combination  of  individuals  which  we  term  "  the 
public"  get  any  such  right  ?  When  we  speak  of  "  rights' ' 
in  these  matters,  we  mean,  of  course,  rights  recognized 
by  the  law,  well-defined  legal  rights,  not  vague  general 
"  public  interests." 

These  positions,  it  will  be  found,  bring  us  to  a  logical, 
reasonable,  and  just  basis  for  the  rule  of  the  common  law 
as  to  contracts  of  combination. 

They  will  also  be  found  to  constitute  the  legal  foundation 
on  which  rested  the  early  English  and  American  statutes, 
of  which  mention  has  here  been  made.  Those  early 
statutes,  as  has  been  shown,  gave  to  individual  citizens 
the  legal  right — to  purchase  labor,  and  to  purchase  mer- 
chandise, at  si")ecific  statutory  rates.  To  "  inhance 
prices,"  therefore,  raising  them  to  a  point  beyond  the 
statutory  figure,  violated  a  legal  right. 

If,  however,  no  individual  has  the  legal  right  to  pur- 
chase at  any  figure  other  than  that  fixed  by  the  will  of 
the  seller,  then  no  individual  suft'ers  any  legal  wrong  by 
any  raising  or  maintaining  of  prices  by  the  seller.  That  is 
the  resulting  legal  situation,  whatever  be  the  figure  fixed 
by  the  seller,  whether  it  be  reasonable  or  unreasonable. 
If,  too,  the  would-be  buyer  sufl'ers  no  legal  wrong  through 
the  raising  of  prices  by  one  man  acting  separately,  he 
suffers  none  through  the  raising  of  prices  by  several  men 
acting  in  concert.  On  the  other  hand,  if  the  owner  of 
labor,  or  of  merchandise,  has  the  legal  right  to  sell  or  not 
to  sell,  at  his  own  will,  and  to  sell  at  his  own  price,  he  has 
the  right  to  fix  that  price  either  separately  or  in  concert 
with  others. 

Bat  it  will  be  said,  that  the  effect  on  would-be  buyers 
is  different  in  case  of  the  fixing  of  prices  by  several  in 
concert,  from  the  effect  in  the  case  of  the  fixing  of  prices 
separately  by  a  single  individual.  Granted.  The  would- 
be  buyer  may  be  inconvenienced  to  a  greater  extent.  He 
may  be  compelled  to  pay  a  higher  price.  But,  unless  he 
has  the  legal  right  to  buy  at  a  lower  price,  he  suft'ers  no 
legal  wrong  by  being  compelled  to  pay  the  higher  price. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  159 

And  mere  loss,  damage,  or  inconvenience,  constitutes  of 
itself  no  legal  injury,  whether  it  be  caused  by  the  act  of 
one  man  separately,  or  by  several  men  acting  in  concert. 

The  damage,  in  either  case,  comes  only  from  the  raising 
of  prices.  The  legal  injury,  if  there  were  one,  would 
come  only  from  the  raising  of  prices.  So  tliat,  in  its  legal 
aspect,  in  its  capacity  of  working  either  damnge  or  injury 
to  any  individual,  there  is  no  difference  between  the  action 
of  a  single  individual  and  of  a  combination.  If  the  would- 
be  buyer  suffers  no  legal  wrong  from  the  one,  he  suffers 
none  from  the  other. 

It  may  be  said,  however,  that  every  individual  has  the 
right,  that  all  trade  should  have  freedom,  and  that  con- 
sequently he  suffers  a  wrong,  when  several  men  combine 
to  interfere  with  that  freedom. 

As  to  this,  it  is  conceded,  that  some  one  suffers  a  legal 
wrong,  when  men  combine  to  interfere  with  the  freedom 
of  others.  But  no  other  man  suffers  a  legal  wrong,  when  I 
simply  put  a  bond  on  my  own  freedom.  Bonds  of  that 
kind  have  been  recognized  as  entirely  lawful,  under  the 
English  and  American  law,  for  centuries.  Nothing  that 
deserves  to  be  called  an  authority  can  be  cited  to  show  that 
they  have  ever  been  held  otherwise.  The  ordinary  con- 
tract of  hiring  is  such  a  bond,  which  interferes  with  a  man's 
freedom,  by  preventing  him  for  the  time  from  joining  in 
perfectly  free  competition  in  the  field  of  labor.  The  or- 
dinary contract  of  partnership)  is  another  such  bond, 
which  fetters  a  man's  freedom,  and  prevents  competition 
between  the  partners.  There  are  cases  without  number 
wheie  contracts  which  restrain  the  freedom  of  the  parties 
contracting,  which  prevent  competition  between  the 
parties  contracting,  have  not  only  been  held  la>vful,  but 
have  been  affirmatively  upheld  by  the  courts,  and  even 
specifically  enforced. 

It  is  well  at  this  point  to  consider  some  of  those  cases, 
with  the  legal  grounds  on  which  they  have  been  decided. 

The  case  Diamond  Match  Co.  v,  Iioeber{a)  will  first 

(a)  Diamond  Match  Co.  v.  lioeber,  106  N.  Y.  473. 


160  RECENT   DECISIONS    AS   TO   CONTRACTS 

demand  attention,  being  the  most  important  of  several 
recent  cases  in  the  New  York  Court  of  Appeals.  That 
was  a  case  in  equity,  wherein  the  plaintiff  sought  specific 
performance  of  a  covenant  by  the  defendant,  whereby  the 
defendant  in  a  contract  of  sale  to  the  plaintiff  of  the  busi- 
ness of  manufacturing  and  selling  matches  which  de- 
fendant was  carrying  on  in  the  State  of  New  York,  cove- 
nanted that  he  would  not  at  any  time  thereafter  within 
ninety-nine  years  engage  in  such  manufacture  or  sale  ex- 
cept in  the  service  of  the  purchasing  company  "  within 
any  of  the  several  states  of  the  United  States  of  America, 
or  in  the  territories  thereof,  or  within  the  District  of 
Columbia,  excepting  and  reserving,  how^ever,  the  right  to 
manufacture  and  sell  friction  matches  in  the  State  of 
Nevada  and  the  Territory  of  Montana."  The  point  was 
raised  that  the  covenant  was  void  by  reason  of  being  in 
restraint  of  trade.  The  Court  lield^  however,  that  the 
covenant  was  lawful,  and  sustained  a  decree  for  specific 
performance.  The  consideration  of  the  law  and  the  au- 
thorities was  so  full  and  so  able,  that  it  is  advisable  to 
quote  from  the  opinion.     The  Court  says  : 

"  The  defendant  for  his  main  defense  relies  upon  the  ancient  doc- 
trine of  the  common  law  tirst  definitely  declared,  so  far  as  I  can  dis- 
cover, by  Chief  Justice  Parker  (Lord  Macclesfield)  in  the  leading- 
case  of  Mitchel  V.  Reynolds  (1  P.  Williams,  181),  and  which  lias 
been  repeated  many  times  by  judges  in  England  and  America,  that 
a  bond  in  general  restraint  of  trade  is  void.  There  are  several  deci- 
sions in  the  English  courts  of  an  earlier  date  in  which  the  question 
of  the  validity  of  contracts  restraining  the  obligor  from  pursuing  his 
occupation  within  a  particular  locality  were  considered.  The  cases 
are  chronologically  arranged  and  stated  by  Mr.  Parsons  in  liis  woik 
on  Contracts  (V^(»l.  2,  p.  748,  note).  The  earliest  repotted  case,  de- 
cided in  the  time  of  Henry  V.,  was  a  suit  on  a  bond  given  by  the 
defendant,  a  dyer,  not  to  use  his  craft  within  a  certain  city  for  tlie 
space  of  half  a  year.  The  judge  before  whom  the  case  came  indig- 
nantly denounced  the  plaintiff  for  procuring  such  a  contract,  and 
turned  him  out  of  court.  This  was  followed  by  cases  aiising  on  con- 
tracts of  a  similar  character,  restraining  the  obligors  from  pursuing 


IN   KESTRATNT   OF   TRADE   OR   COMMERCE.  161 

their  trade  within  a  certain  place  for  a  certain  time,  which  apparently 
presented  the  same  question  which  had  been  decided  in  the  dyer's 
case,  but  the  courts  su:itained  the  contracts  and  gave  judgment  for  the 
plaintiffs  ;  and,  before  the  case  of  Mitchel  v,  Reynolds,  it  had  become 
settled  that  an  obligation  of  this  character,  limited  as  to  time  and 
space,  if  reasonable  under  the  circumstances  and  supported  by  a 
good  consideration,  was  valid.  The  case  in  the  Year  Books  went 
ar/ainst  all  contracts  in  restraint  of  trade,  tnhether  limited  or  general. 
The  other  cases,  prior  to  Mitchel  v.  Reynolds,  sustained  contracts  for 
a  particular  restraint,  upon  special  grounds,  and  by  inference  decided 
against  the  validity  of  general  restraints.  The  case  of  Mitchel  v. 
Reynolds  was  a  case  of  partial  restraint  and  the  contract  was  sustained. 
It  is  worthy  of  notice  that  most,  if  not  all,  the  English  cases  which 
assert  the  doctrine  that  all  contracts  in  general  restraint  of  trade  are 
void,  were  cases  where  the  contract  before  the  court  was  limited  or 
partial.  The  same  is  generally  true  of  the  American  cases.  The 
principal  cases  in  this  State  are  of  Ihat  character,  and  in  cdl  of  them 
tlie  particular  contract  before  the  court  was  sustained  {^Nobles  v.  Bates, 
7  Cow.  307  ;  Chappel  v.  Brockway,  21  Wend.  157  ;  Dunlop  v.  Greg- 
ory, 10  N.  Y.  241).  In  Alger  w  Thacher  (19  Pick.  51),  the  case 
was  one  of  general  restraint,  and  the  court,  construing  the  rule  as 
inflexible  that  all  contracts  in  general  restraint  of  1rade  are  void,  gave 
judgment  for  the  defendant.  In  Mitchel  v.  Reynolds  the  court,  in 
assigning  the  reasons  for  the  distinction  between  a  contract  in  gen- 
eral restraint  of  trade,  and  one  limited  1o  a  particular  place,  says, 
'  for  the  former  of  these  nmst  be  void,  being  of  no  benefit  to  either 
party  and  only  oppressive  ;  '  and  later  on,  '  because  in  a  great  many 
instances  they  can  be  of  no  use  to  the  obligee,  which  holds  in  all 
cases  of  general  restraint  throughout  England,  for  what  does  it  sig- 
nify to  a  tradesman  in  London  what  another  does  in  Newcastle,  and 
surely  it  would  be  unreasonable  to  fix  a  certain  loss  on  one  side  with- 
out any  benefit  to  the  other. '  He  refers  to  other  reasons,  viz.  :  The 
mischief  which  may  arise  (1)  to  the  party,  by  the  loss,  by  the  obligor, 
of  his  livelihood  and  the  subsistence  of  his  family  ;  and  (2),  to  the 
public,  by  depriving  it  of  a  useful  member  and  by  enabling  corpora- 
tions to  gain  control  of  the  trade  of  the  kingdom.  It  is  quite  obvi- 
ous that  some  of  these  reasons  ore  much  less  forcible  now  than  when 
Mitchel  V.  Reynolds  was  decided.  Steam  and  electricity  have,  for  the 
purpose  of  trade  and  commerce,  almost  annihilated  distance,  and  the 
whole  world  is  noio  a  mart  for  tlie  distribution  of  the  products  of  indus- 


162  RECENT   DECISIONS   AS   TO    CONTRACTS 

try.  The  great  diffusion  of  wealth  and  the  restless  activity  of  man- 
kind striving  to  better  their  condition,  has  greatly  enlarged  the  field 
of  human  enterprise  and  created  a  vast  number  of  new  industiies, 
which  give  scope  to  ingenuity  and  employment  for  capital  and  labor. 
The  laws  no  longer  favor  the  granting  of  exclusive  privileges,  and,  to 
a  great  extent,  business  corporations  are  practically  partnerships  and 
may  be  organized  by  any  persons  who  desire  to  unite  their  capital  or 
skill  in  business,  leaving  a  free  field  to  all  others  who  desire  for  the 
same  or  similar  purposes  to  clothe  themselves  with  a  corporate  char- 
acter. The  tendency  of  recent  adjudications  is  marked  in  the  direction 
of  relaxing  the  riyor  of  the  doctrine  that  all  contracts  in  general  restraint 
of  trade  are  void  irrespective  of  special  circumstances.  Indeed,  it  has 
of  late  been  denied  that  a  hard-and-fast  rule  of  that  kind  has  ever 
been  the  law  of  England  [Roiisillon  v.  Rousillon,  14  L.  K.,  Ch.  Div. 
351).  The^  law  has,  for  centuries,  permitted  contracts  in  partial  re- 
straint of  trade,  when  reasonable  ;  and  in  Horner  v.  Graves  (7  Bing. 
YSS),  Chief  Justice  Tindal  considered  a  true  test  to  be  '  whether  the 
restraint  is  such  only  as  to  afford  a  fair  protection  to  the  interests  of 
the  party  in  favor  of  whom  it  is  given,  and  not.  so  large  as  to  inter- 
fere with  the  interests  of  the  public'  When  the  restraint  is  general, 
but  at  the  same  time  is  co-extensive  only  with  the  interest  to  be  pro- 
tected, and  with  the  benefit  meant  to  be  conferred,  there  seems  to 
be  no  good  reason  why,  as  between  the  parties,  the  contract  is  not  as 
reasonable  as  when  the  interest  is  partial  and  there  is  a  correspond- 
ing partial  restraint.  And  is  there  any  real  puhlic  interest  which  neces- 
sarily condemns  the  one  and  not  the  other  ?  It  is  an  encouragement  to 
industry  and  to  enterprise  in  building  up  a  trade,  that  a  man  shall  be 
allowed  to  sell  the  good  will  of  the  business  and  the  fruits  of  his  in- 
dustry upon  the  best  terms  he  can  obtain,  tf  his  business  extends 
over  a  continent,  does  public  policy  forbid  his  accompanying  the  sale 
with  a  stipulation  for  restraint  co-extensive  with  the  business  which 
he  sells  ?  If  such  a  contract  is  permitted,  is  the  seller  any  more 
likely  to  become  a  burden  on  the  public  than  a  man  who  having  built 
up  a  local  trade  only,  sells  it,  binding  himself  not  to  carry  it  on  in 
the  locality  ?  Arc  the  opportunities  for  employment  and  for  the  exer- 
cise of  useful  talents  so  shut  up  and  hemmed  in  that  the  public  is 
likely  to  lose  a  useful  member  of  society  in  the  one  case  and  not  in 
the  other  ?  Indeed,  what  public  policy  requires  is  often  a  vague  and 
difficult  inquiry.  It  is  clear  tlmt  public  policy  and  the  interests  of  so- 
ciety favor  the  utmost  freedom  of  contract,  within  the  law,  and  require 


IN   RESTRAINT   OF   TRADE   OR    COMMERCE.  163 

that  linainesH  transactions  should  not  he  trammeled  hy  unnecessanj  re- 
strictions. '  If,'  said  Sir  George  Jessell,  in  Printing  Compaiui  v. 
Sampson  (19  Eq.  Cas.  L.  R.  462),  '  tliere  is  one  thing  more  than  any 
other  which  public  policy  requires,  it  is  that  men  of  full  age  and 
competent  understanding  shall  has^e  the  utmost  lihertij  of  contract  in-:/, 
and  that  contracts  when  entered  into  freely  and  voluntarily,  shall  be  held 
(food  and  shall  he  enforced  hy  courts  of  justice/  It  has  sometimes  been 
suggested  that  the  doctrine  that  contracts  in  general  restraint  of  trade 
are  void,  is  founded  in  part  upon  the  policy  of  preventing  monopo- 
lies, which  are  opposed  to  the  liberty  of  the  subject,  and  the  grant- 
ing of  which  by  the  king  under  claim  of  royal  prerogative  led  to  con- 
flicts memorable  in  English  history.  But  covenants  of  the  character 
of  the  one  now  in  question  operate  simply  to  prevent  the  covenantor 
from  engaging  in  the  business  which  he  sells,  so  as  to  protect  the 
purchaser  in  the  enjoyment  of  what  he  has  purchased.  To  the  extent 
that  the  contract  prevents  the  vendor  from  carrying  on  the  particular 
trade,  it  deprives  the  community  of  any  benefit  it  might  derive  from 
his  entering  into  competition.  But  the  business  is  open  to  all  others, 
and  there  is  little  danger  that  the  public  will  suffer  harm  from  lack 
of  persons  to  engaye  in  a  profitable  indastry.  Such  contracts  do  not 
create  monopolies.  They  confer  no  special  or  exclusive  privilege.  If 
contracts  in  general  restraint  of  trade,  where  the  trade  is  general,  are  void 
as  tending  to  monojmlies,  contracts  in  partial  restraint  where  the  trade 
is  local,  are  sufjject  to  the  same  olyection,  because  they  deprive  the  local 
community  of  the  services  of  the  covenantor  in  the  particular  trade  or 
calling,  and  prevent  his  becoming  a  competitor  with  the  covenantee.  We 
are  not  aware  of  any  rule  of  law  which  makes  the  motive  of  the  cove- 
nantee the  test  of  the  validity  of  such  a  contract.  On  the  contrary 
we  suppose  a  party  may  legally  purchase  the  trade  and  business  of 
another  for  the  very  purpose  of  preventing  competition,  and  t])e 
validity  of  the  contract,  if  supported  by  a  consideration,  will  depend 
upon  its  reasonableness  as  between  the  parties.  Combinations  be- 
tween producers  to  limit  production  and  to  enhance  prices,  are  or 
may  be  unlawful,  but  they  stand  on  a  different  footing. 


"  In  the  present  state  of  the  authorities  we  think  it  cannot  be  snid 
that  the  early  doctrine  that  contracts  in  general  restraint  of  trade  are 
void,  without  regard  to  circumstances,  has  been  abrogated.  But  it 
is  inanifest  that  it  has  been  much  weakened,  and  that  the  foundation 


164  RECENT   DECISIONS   AS   TO   CONTRACTS 

upon  which  it  was  originally  placed  has,  to  a  considerable  extent  at 
least,  by  the  change  of  circumstances,  been  removed." 

It  will  be  noted  that  the  Court  says  :  "  The  law  has, 
for  centuries,  permitted  contracts  in  partial  restraint  of 
trade,  when  reasonable."  But  in  this  case,  in  accord- 
ance with  well-established  principles,  the  Court  went  be- 
yond mere  permission,  and  carried  its  ruling  to  the  point 
of  affirmative  enforcement. 

This  case,  which  was  decided  in  1887,  was  followed 
soon  thereafter  by  Leslie  v.  Lorillard,{a)  decided  in  Octo- 
ber, 1888.  That  was  the  case  of  a  stockholder  seeking  to 
enjoin  and  to  recover  payments  by  the  corporation  in 
which  he  was  a  member  under  a  contract  between  that 
corporation  and  a  second,  the  contract  and  the  payments 
thereunder  being  made  to  prevent  competition  between 
the  two  contracting  parties  in  the  traffic  between  the  City 
of  New  York  and  certain  ports  in  the  State  of  Virginia. 
One  of  the  grounds  on  which  the  injunction  and  the  re- 
covery were  sought  was  that  the  contract  was  against 
public  policy,  and  therefore  illegal,  as  being  "  prejudicial 
to  some  public  interest."  Here,  too,  the  reasoning  of  the 
Court  is  so  sound  as  to  make  it  desirable  to  give  the  fol- 
lowing extract  from  the  opinion  \{b) 

"  Testing  by  these  rules  the  case  made  by  plaintiff  in  his  com- 
plaint, we  find,  in  considering  that  pleading,  that  the  only  respect  in 
which  the  contracts  in  question  could  be  viewed  as  prejudicial  to 
public  interests,  and,  therefore,  become  the  subject  of  judicial  con- 
demnation, as  being  against  public  policy,  would  be  that  they  were 
in  restraint  of  competition  and  tended  to  create  a  monopoly.  The 
tendency  of  modern  thought  and  of  the  decisions,  however,  has  been 
no  longer  to  uphold  in  its  strictness  the  doctrine  which  formerly  pre- 
vailed in  respect  of  agreements  in  restraint  of  trade.  The  severity 
with  which  such  agreements  were  at  first  treated  became  more  and 
more  relaxed  by  exceptions  and  qualifications.  This  change  was 
gradual,  and  may  be  considered,  perhaps,  as  due  mainly  to  the  growth 
and  spread  of  the  industrial  activities  of  the  world,  and  to  enlarged 

(a)  Leslie  v.  LoHllard,  110  N.  Y.  519.  {h)  Ibid.,  533. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  165 

commorcial  facilities,  which  render  such  agreements  less  dangerous 
as  tending  to  create  monopolies.  Tlie  earlier  doctrine,  of  course, 
obtained  in  respect  of  agreements  between  individuals.  Tlie  limita- 
tion which  became  imposed  was,  that  the  agreement  should  operate 
as  to  a  locality  and  not  as  to  the  whole  land.  In  later  times  the  dan- 
ger in  such  agreements  seems  only  really  to  exist  when  corporations 
are  parties  to  them,  for  their  means  and  strength  would  better  enable 
them  to  buy  oflf  rivalry  and  to  create  monopolies. 

"  The  object  of  government,  as  interpreted  by  the  judges,  was  not 
to  interfere  with  the  free  right  of  man  to  dispose  of  his  property  or 
of  his  labor  ;  it  was  to  guard  society,  of  which  he  was  a  member, 
from  the  injurious  consequences  of  his  agreement  ;  whether  they 
would  arise  from  his  own  improvidence  in  bargaining  away  his  means 
of  gaining  a  livelihood,  or  in  the  deprivation  to  society  of  the  advan- 
tages of  competition  in  skilled  labor.  At  the  present  day  there  is 
not  that  danger,  or  at  least  it  does  not  seem  to  exist  to  an  appre- 
ciable extent,  except,  possibly,  as  suggested  in  the  case  of  corpora- 
tions. In  their  supervision  and  in  their  restriction  within  the  limits 
of  their  chartered  powers,  the  government  and  the  public  are  directly 
interested.  Corporations  are  great  engines  for  tlie  promotion  of  the 
public  convenience,  and  for  tlie  development  of  public  wealth,  and, 
so  long  as  they  are  conducted  for  the  purposes  for  which  organized, 
they  are  a  public  benefit  ;  but  if  allowed  to  engage,  without  super- 
vision, in  subjects  of  enterprise  foreign  to  their  charters,  or  if  per- 
mitted unrestrainedly  to  control  and  monopolize  the  avenues  to  that 
industry  in  which  they  are  engaged,  they  become  a  public  menace  ; 
against  which  public  policy  and  statutes  design  protection. 

•'  When,  therefore,  the  provisions  of  agreements  in  restraint  of 
competition  tend  beyond  measures  for  self  protection  and  threaten 
the  public  good  in  a  distinctly  appreciable  manner,  they  should  not 
be  sustained.  The  apprehension  of  danger  to  the  public  interests, 
however,  should  rest  on  evident  grounds,  and  courts  should  refrain 
from  the  exercise  of  their  equitable  powers  in  interfering  with  and 
restraining  the  conduct  of  the  affairs  of  individuals  or  of  corporations, 
unless  their  conduct,  in  some  tangible  form,  threatens  the  welfare  of 
the  public.  The  doctrine  relating  to  contracts  in  restraint  of  trade 
has  been  elaborately  discussed  in  a  careful  opinion  of  Andrews,  J., 
in  the  recent  case  of  the  Diamond  Match  Company  v.  Roeber  (lOG 
N.  Y.  478).  Under  the  authority  of  that  case,  it  may  be  said  that 
no  contracts  are  void  as  being  in  general  restraint  of  trade,  where 


166  EECENT   DECISIOlSrS   AS   TO   CONTRACTS 

they  operate  simply  to  prevent  a  party  from  engaging  or  competing 
in  the  same  business.  It  is  there  said  (p.  483)  :  '  To  tlie  extent  that 
the  contract  prevents  the  vendor  from  carrying  on  the  particular 
trade,  it  deprives  the  community  of  any  benefit  it  might  derive  from 
his  entering  into  competition.  But  the  business  is  open  to  all  others 
and  there  is  little  danger  that  the  public  will  suffer  harm  from  lack  of 
persons  to  engage  in  a  profitable  industry.  Such  contracts  do  not 
create  monopolies.      They  confer  no  special  or  exclusive  privileges.' 

"  Under  the  doctrine  of  that  case,  it  is  difficull  to  see  how  the 
contracts,  which  are  complained  of  here,  are  open  to  the  objection 
suggested  b}^  counsel.  Regarded  only  in  the  light  of  what  they 
tended  to  effect,  these  agreements  removed  a  business  rival,  whose 
corapctition  may  have  been  deemed  dangerous  to  the  success  or  main- 
tenance of  the  business  of  the  Old  Dominion  Company.  They  could 
not,  of  course,  exclude  all  competition  in  the  business,  but  would  in 
that  particular  case. 

"  How,  then,  is  the  result  different  from  the  simpler  case  of  the 
sale  by  an  individual  of  his  business  and  his  right  to  conduct  it  in  a 
particular  part  of  the  land  ?  The  doctriue  held  by  this  Court  in 
Diamond  Match  Company  v.  Roeber  [siqwa)  should  control  in  the 
case  at  bar,  and  these  contracts,  therefore,  cannot  be  considered  ob- 
jectionable on  the  ground  that  they  restrained  competition.  Whether 
competition  in  this  particular  business  would  be  a  public  benefaction, 
or  its  restraint  a  source  of  prejudice,  we  are  unable,  of  course,  to 
judge.  I  do  not  think  that  competition  is  invariably  a  public  bene- 
faction ;  for  it  may  be  carried  on  to  such  a  degree  as  to  become  a 
general  evil." 

Next  came  Tode  v.  Gross ^{a)  which  upheld  an  agree- 
ment which  bound  the  defendant  not  to  engage  in  the 
business  of  manufacturing  a  certain  kind  of  cheeses,  with- 
out limitation  as  to  time  or  place,  and  allowed  the  recov- 
ery of  five  thousand  dollars  as  liquidated  damages  for  its 
breach.  The  Court  cited  the  cases  just  mentioned  with 
the  remark,  "  Recent  cases  make  it  very  clear  that  such 
an  agreement  is  not  opposed  to  public  policy^  even  if  the 
restriction  was  unlimited  as  to  both  time  and  territory." 

In  Matthews  v.  Associated  Press  of  the  State  of  New 

{a)  Tode  v.  Gross,  127  N.  Y.  480. 


IN    RESTRAINT   OF   TRADE   OR   COMMERCE.  107 

Yorh^  (a)  a  by-law  prohibiting  members  of  the  defendant, 
a  news  association,  from  receiving  or  publishing  "  the 
regular  news  despatches  of  any  other  news  association 
covering  a  like  territory  and  organized  for  a  like  pur- 
pose" was  held  to  be  lawful ;  and  the  Court  said  : 

'*  The  latest  decisions  of  courts  in  this  country  and  in  England 
show  a  strong  tendency  to  very  yreatly  circumscribe  and  narrow  the 
doctrine  of  avoiding  contracts  in  restraint  of  trade.  The  courts  do  not 
go  to  the  length  of  saying  that  contracts  which  they  now  would  say 
are  in  restraint  of  trade  are,  nevertheless,  valid  contracts,  and  to  be 
enforced  ;  they  do,  however,  now  hoM  many  contracts  not  open  to 
the  objection  that  they  are  in  restraint  of  trade  vvhich  a  few  years 
back  would  have  been  avoided  on  that  sole  ground,  both  here  and  in 
England.  The  cases  in  this  court  which  are  the  latest  manifestations 
of  the  tarn  in  the  tide  are  cited  in  the  opinion  in  this  case  at  General 
Term,  and  are  Diamond  Match  Co.  v.  Roeber  (106  N.  Y.  473)  ; 
Hod'je  V.  Neill  (107  id.  244)  ;  Leslie  v.  Lorillard  (110  id.  519). 

"  So  that  when  we  agree  that  a  by-law  which  is  in  restraint  of 
trade  is  void,  we  are  si  ill  brought  back  to  the  question  what  is  a  re- 
straint of  trade  in  the  modern  definition  of  that  term  ?  The  author- 
ity to  make  by-laws  must  also  be  limited  by  the  scope  and  purpose 
of  the  association.  I  think  this  by-law  is  thus  limited  and  that  it  is 
not  in  restraint  of  trade  as  the  courts  now  interpret  that  phrase. 
Some  of  the  grounds  showing  the  reasonableness  of  the  by-laws  are 
well  and  clearly  set  forth  in  the  opinion  delivered  by  the  learned 
judge  at  the  General  Term.  Here  are  a  number  of  persons  who  are 
owners  of  or  interested  in  various  newspapers  in  the  State  outside  of 
the  city  of  New  York.  They  enter  into  business  relations  with  each 
other,  to  a  certain  extent,  through  the  form  of  an  organization  known 
as  a  corporation,  and  for  the  purpose,  among  others,  of  collecting 
and  supplying  themselves  with  telegraphic  news.  The  greater  the 
number  belonging  to  the  organization  the  larger  will  be  its  income 
and  the  greater  amount  it  will  be  able  to  spend  for  making  the  collec- 
tion of  news  and  the  more  efficient  and  valuable  such  collection  will 
be.  To  suppress  competition  in  such  chosen  field  among  themselves 
and  to  thus  enhance  the  value  of  the  property  and  the  conveniences 
arising  from  the  extended  use   of  the  mrtais  and  opportunities  of  the 

(a)  Matthews  v.  Associated  Press  of  the  State  of  New  York,  136  N.  Y.  333, 
340. 


168  RECENT   DECISIONS   AS   TO   CONTRACTS 

association,  it  loould  seem  most  appropriate  to  p>'>'ovide  that  the  mem- 
bers of  such  association  should  not  take  news  from  any  other.  The  di- 
vision of  the  business  among  two  or  more  associations  tends  directly 
toward  the  malving  of  the  membership  in  each  less  valuable  than  it 
otherwise  would  be,  and  the  membership  being  less  valuable  the  asso- 
ciation itself  would  tend  to  decrease  in  members  and  to  grow  less 
efficient  in  service  and  less  capable  of  fulfilling  promptly  one  of  the 
great  objects  of  its  existence,  the  procuring  and  supplying  of  news  to 
its  members.  Thus  a  by-law  of  the  nature  complained  of  would  have 
a  tendency  to  strengthen  the  association  and  to  render  it  more  capa- 
ble of  filling  the  duty  it  was  incorporated  to  perform.  A  business 
partnership  could  provide  that  none  of  its  members  should  attend  to 
any  business  other  than  that  of  the  partnership,  and  that  each  part- 
ner who  came  in  must  agree  not  to  do  any  other  business,  and  must 
give  up  all  such  business  as  he  had  theretofore  done.  Such  an  agree- 
ment would  not  be  in  restraint  of  trade,  although  its  direct  effect 
might  be  to  restrain  to  some  extent  the  trade  which  had  been  done. 

"  It  seems  to  me  this  by-law  is  a  natural  and  reasonable  restraint 
upon  the  members  of  the  association,  appropriately  regulating  their 
conduct  as  members  thereof  with  respect  to  the  business  which  the 
association  was  specially  organized  and  incorporated  to  transact.  Its 
success  must  greatly  depend  upon  the  number  of  its  members,  and 
tliat  in  its  turn  must  depend  upon  the  efficiency,  reliability,  and 
promptness  with  which  it  collects  and  distributes  its  news. 

*'  This  by-law,  I  think,  plainly  tends  to  aid  the  association  in  the 
accomplishment  of  this  object." 

These  decisions  all  get  additional  light  from  the  course 
taken  by  the  Court  of  Appeals  in  the  case  Peojjle  v.  North 
Riner  Sugar  Refining  Company .ia)  That  was  an  action 
to  dissolve  the  defendant  corporation  for  an  abuse  and 
disuse  of  its  corporate  powers,  such  abuse  and  disuse  con- 
sisting in  a  consolidation  of  the  defendant  with  other  cor- 
porations, for  the  purpose  of  placing  their  jDroperties  and 
businesses  under  one  common  management,  with  a  view 
to  the  prevention  of  competition,  and  the  acquiring  of 
complete  control  in  the  United  States  of  the  business  of 
refining  sugar.     The  Court  below  had  affirmed  a  judg- 

(a)  People  v.  North  River  Sugar  Refining  Company,  121  N.  Y.  582. 


IN   RESTRAINT   OF  TRADE   OR   COMMERCE.  169 

ment  of  dissolution.  That  affirmance  was  rested  on  the 
ground,  among  others,  that  the  consolidation  in  question 
was  a  combination 

*'  for  an  unlasvful  purpose,  detrimental  and  injurious  to  the  public  ; 
instead  of  manufacturing  its  product  and  disposing  of  it  to  the  public 
on  what  might  be  fair  competitive  prices,  it  had  become  a  party  to  a 
combination,  in  part,  at  least,  designed  to  create  a  monopoly,  and  ex- 
act from  the  public  prices  which  could  not  otherwise  be  obtained. "(a) 

In  another  passage  of  the  opinion  the  Court  said,  that 

*'  the  agreement,  association,  combination  or  arrangement,  or  what- 
ever else  it  may  be  called,  having  for  its  object  the  removal  of  com- 
petition and  the  advancement  of  prices  of  necessaries  of  life,  is  sub- 
ject to  the  condemnation  of  the  law,  by  which  it  is  denounced  as  a 
criminal  enterfa-ise.  The  law  at  this  time,  as  it  has  for  many  years 
in  this  State,  has  made  it  a  misdemeanor  for  two  or  more  persons  to 
conspire  '  to  commit  any  act  injurious  to  the  public  health,  to  public 
morals,  or  to  trade  or  commerce,  or  for  the  perversion  or  obstruction 
of  justice,  or  of  the  due  administration  of  the  law.  '  "((6) 

The  Court  of  Ai)peals,  however,  avoided  an  approval 
of  this  position,  nnd  rested  its  affirmance  of  the  judg- 
ment on  the  ground  that  the  surrender  by  the  corporation, 
its  stockholders  and  officers,  of  the  control  of  the  corporate 
property  and  business  constituted  a  violation  of  its  char- 
ter, and  a  failure  in  the  performance  of  its  corporate 
duties  ;  and  that  such  violation  and  failure  justified  a 
judgment  of  dissolution.  At  that  time,  the  Court  had  a^D- 
parently  not  reached  the  view  of  the  law  laid  down  in 
People  V.  Sheldon. 

Most  significant,  too,  is  some  of  the  language  of  the 
Court  in  the  still  later  case  of  Lough  v.  Outerbrldge,{c) 
where  the  contention  of  the  plaintifl"  was  that  the  defend- 
ants, the  owners  of  a  line  of  steamships,  had  been  guilty  of 
an  unreasonable  discrimination  in  rates  against  the  plain- 
tiffs, with  a  view  to  preventing  the  plaintiffs  from  ship- 
ping by  another  line.     The  Court  used  this  language  :(fZ) 

{n)  People  v.  North  River  Sugar  Refining  Company,  54  Hun,  354,  386. 

(b)lbid.,  p.  380. 

(c)  Lough  V.  Outerbridge,  143  N.  Y.  271.  {d)  P.  282. 


170  EECENT  DECISIONS    AS   TO   CONTEACTS 

"  The  significance  which  the  learned  counsel  for  the  plaintiffs  seems 
to  give  to  it  in  his  argument  is  that  it  conclusively  show^s  the  purpose 
of  the  defendants  to  compel  the  plaintiffs  to  withdraw  their  patronage 
from  the  other  line,  to  sujjpress  competition  in  the  s  ness,  and  to 
retain  a  monopoly  for  their  own  benefit.  Conceding  that  such  was  the 
purpose,  it  is  not  apparent  how  sny  obligation  that  the  defendants 
oived  to  the  pnblic  was  disregarded/^ 

Therenpon  the  Court  cites  with  approval  the  Mogul 
Steamsliip  case,  and  quotes  from  its  opinion. 

As  a  question  of  legal  principle,  how  is  it  possible  to 
reconcile  the  decision  in  People  v.  Sheldon.,  even  with  its 
limitation  as  to  articles  "  of  prime  necessity,"  with  the 
long  line  of  authorities  in  which,  as  has  been  shown,  our 
courts  have  not  only  upheld,  but  have  enforced,  contracts 
"  in  restraint  of  trade"  I  The  Court  of  Appeals,  on  its 
equity  side,  in  suits  between  the  parties,  enforces  con- 
tracts in  restraint  of  trade,  of  which  almost  the  only  pur- 
pose is  the  prevention  of  competition,  while  on  its  crimi- 
nal side  it  indicts  and  punishes  those  same  parties  for 
making  the  contracts  which  it  enforces. 

In  the  multiplicity  of  cases  which  are  presented  before 
our  courts  of  highest  jurisdiction  it  is  an  impossibility 
that  every  case  should  receive  the  full  degree  of  consid- 
eration which  is  its  due.  Counsel  sometimes  fail  in  mak- 
ing a  full  presentation  of  the  legal  principles  on  which  a 
case  should  be  decided.  And  the  Courts,  it  must  be  con- 
ceded, do  in  some  instances  make  oversights  and  errors. 

It  is  most  resi^ectfully  submitted,  that  the  case  of  Peo- 
ple V.  Sheldon  is  the  case  of  such  an  oversight  and  error. 

We  come  next  to  the  consideration  of  the  case  in  the 
United  States  Supreme  Court,  (a) 

In  its  most  important  aspect,  this  case  decides  the  same 
point  with  People  v.  Sheldon.,  that  is,  that  a  mere  con- 
tract, providing  for  the  fixing  by  one  common  authority 
of  the  rates  to  be  charged  by  the  contracting  parties,  of 
itself  constitutes  a  crime. 

(a)  The  United  States  v.  The  Trans- Missouri  Freight  Association,  166 
U.  S.  290. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  171 

Bearing  in  mind  the  primary  distinction  heretofore 
made,  and  here  throughout  maintained,  between  public 
and  private  enii:)loyments,  bearing  also  in  mind  the  un- 
questioned power  of  Congress  to  regulate  interstate  com- 
merce, and  its  unquestioned  lack  of  power  to  make  laws 
as  to  trade  and  commerce  in  their  mere  ordinary  rela- 
tions to  individuals  and  the  State,  let  ns  lirst  examine 
the  two  acts  of  Congress  considered  by  the  SuxH'eme 
Court  in  its  opinion  in  the  Freight  Association  Case. 
The  following  summaries  will  suffice  to  present  the  fea- 
tures of  those  acts  which  bear  upon  the  present  discus- 
sion : 

The  Inter-State  Commerce  Actio)  begins  by  defining 
the  application  of  its  i)rovisions  "  to  any  common  carrier 
or  carriers  engaged  in  the  transportation  of  passengers  or 
property  wholly  bj^  railroad  or  partly  by  railroad  and 
partly  by  water  when  both  are  used  under  a  common 
control,  management,  or  arrangem.ent  for  a  continuous 
carriage' '  from  one  State  to  another  or  from  or  to  any 
I)lace  in  the  United  States  to  or  from  or  through  any 
foreign  country  ;  the  Act  next  defines  the  term  "  rail- 
road," and  then  provides  that  "  All  charges  made  for  any 
service  rendered  or  to  be  rendered  in  the  transportation 
of  passengers  or  property  as  aforesaid,  or  in  connection 
therewith,  .  .  .  shall  be  reasonable  and  just  ;  and  every 
unjust  and  unreasonable  charge  for  such  service  is  pro- 
hi})ited  and  declared  to  be  unlawful."  Section  2  pro- 
hibits the  making  of  special  rates  and  rebates  to  particu- 
lar shippers.  Section  8  prohibits  the  giving  of  undue 
preference  or  advantage  to  jDarticular  persons  or  locali- 
ties, and  requires  equal  facilities  to  be  given  to  connect- 
ing lines  without  discrimination  of  rates. 

Section  4  is  the  "long  and  short  haul"  clause.  Sec- 
tion 5  prohibits  pooling  agreements  or  combinations  of 
competing  lines  to  divide  earnings,  and  provides  a  x^en- 
alty  for  the  maintaining  of  such  agreements. 

{«)  Laws  of  1887,  ch.  104  ;  24  U.  S.  Stat,  at  Large,  379. 


172  RECENT   DECISIONS   AS   TO   CONTRACTS 

Section  6  requires  carriers  to  post  schedules  of  their 
freight  and  passenger  rates,  and  provides  for  a  notice  of 
ten  days  before  any  advance  in  such  rates  ;  it  also  re- 
quires the  filing  of  copies  of  such  schedules  with  the  com- 
missioners appointed  by  the  Act,  defines  the  powers  of 
the  commissioners  with  respect  to  the  same,  and  provides 
remedies  by  mandamus,  contempt  proceedings,  and  in- 
junction for  a  failure  to  comply  with  such  requirements. 

Section  7  makes  it  unlawful  for  carriers  by  combina- 
tion or  agreement  to  prevent  continuous  carriage  of 
freights. 

Section  8  makes  carriers  liable  for  damages  to  persons 
injured  by  a  violation  of  any  of  the  clauses  of  the  Act. 

Section  9  provides  for  complaints  to  the  commission  or, 
in  the  alternative,  suits  for  the  recovery  of  damages,  by 
persons  injured. 

Section  10  makes  violations  of  the  Act  misdemeanors 
and  prescribes  a  penalty. 

Sections  11-21  provide  for  the  creation  of  the  commis- 
sion and  define  its  powers,  duties,  and  jDrocedure. 

Section  22  makes  certain  exceptions  to  the  "  discrimi- 
nation" and  "undue  preference"  provisions  of  the  Act, 
and  continues  existing  common  law  and  statute  remedies. 

The  Act  of  July  2d,  1890,  entitled  "  An  act  to  protect 
trade  and  coininerce  against  unlawful  restraints  and 
7nonopolies''\a)  provided  that : 

"  §  1,  Every  contract,  combination  in  the  form  of  trust 
or  otherwise,  or  conspiracy,  in  restraint  of  trade  or  com- 
merce among  the  several  States  or  with  foreign  nations, 
is  hereby  declared  to  be  illegal."  Engaging  in  such  a 
combination  is  to  be  deemed  a  misdemeanor  and  punish- 
able by  fine  or  imprisonment. 

"  §  2.  Every  person  who  shall  monopolize,  or  attempt 
to  monopolize,  or  combine  or  conspire  with  any  other 
person  or  persons,  to  monopolize  any  part  of  the  trade  or 
commerce  among  the  several  States  or  with  foreign  na- 

(a)  26  U.  S.  Stat,  at  Large  209,  chap.  647. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  173 

tions,  shall  be  deemed  guilty  of  a  misdemeanor,"  and 
shall  be  punished  by  fine  or  imprisonment. 

§  3  prohibited  under  like  penalties  contracts  in  restraint 
of  trade  in  any  Territory. 

§§  4  and  5  conferred  jurisdiction  on  the  circuit  courts 
in  the  cases  covered  by  the  Act  and  regulated  the  pro- 
cedure. 

§  6  provided  that  "  any  property  owned  under  any  con- 
tract or  by  any  combination,  or  pursuant  to  any  con- 
spiracy (and  being  the  subject  thereof)  mentioned  in  sec- 
tion one  of  this  Act,  and  being  in  the  course  of  trans- 
portation from  one  State  to  another"  shall  be  forfeited  to 
the  United  States. 

§  7  gives  a  right  of  action  to  any  person  injured  in  his 
business  or  property  by  any  other  person  by  reason  of 
anything  forbidden  by  the  Act. 

Here  then  are  two  statutes  on  their  face  relating  to  two 
quite  distinct  subjects — one  to  common  carriers,  the  other 
to  the  trade  relations  of  ordinary  individuals. 

As  to  the  Interstate  Commerce  Act,  it  would  seem 
evident  from  its  general  scope,  and  all  its  provisions,  that 
the  intention  of  Congress  was  to  comprise  in  that  act, 
with  any  subsequent  amendments  that  might  be  made 
thereto,  the  entire  body  of  the  regulations,  which  it  in- 
tended to  make  as  to  common  carriers,  and  their  perform- 
ance of  their  duties  to  the  public — especially  in  the  mat- 
ter of  rates  and  charges.  No  lawj^er  will  question  the 
power  of  Congress  to  regulate  the  rates  to  be  charged  by 
railroad  companies  engaged  in  interstate  commerce. 

But  in  what  act,  or  series  of  acts,  would  such  regula- 
tions be  found  ^ 

Manifestly  such  regulations  properly  belong,  and 
would  naturally  be  looked  for,  in  the  general  act  of  Con- 
gress governing  the  specific  subject  of  Interstate  Com- 
merce. It  was  found,  however,  that,  while  that  Act  did, 
as  we  have  seen,  expressly  (1)  require  that  rates  shall  be 
reasonable  and  provide  machinery  for  the  enforcement 
of  that  requirement,  and  (2)  prohibit  the  making  of  agree- 


174  KECENT   DECISIONS   AS   TO   CONTRACTS 

ments  for  the  "pooling"  of  charges  between  competing 
carriers,  it  did  not  in  terms  or  impliedly  prohibit  the 
making  of  agreements  for  the  fixing  of  rates,  whether 
reasonable  or  unreasonable. 

On  the  other  hand,  the  Trust  Act  did  not  in  terms  refer 
to  the  business  of  carriers  in  any  shape  or  connection. 
By  its  terms  it  purported  to  deal  with  "  trusts,"  "  mo- 
nopolies," and  "  conspiracies  in  restraint  of  trade." 
Against  those  particular  objects  of  its  reprobation  the 
provisions  of  the  Act  were  strong  and  comprehensive. 
Not  content  with  dealing  in  general  terms  with  "  trusts" 
and  "  cons];)iracies"  in  restraint  of  trade,  it  actually  made 
a  criminal  of  "  every  person  who  shall  monopolize  or  «^- 
tempt  to  monopolize  .  .  .  any  part  of  the  trade  or  com- 
merce among  the  several  States  or  with  foreign  nations." 
On  reflection,  it  is  difficult  to  imagine  a  merchant  aboA^e 
the  grade  of  a  retail  dealer  who  is  not  within  the  con- 
demnation of  this  language  of  the  statute. 

The  Supreme  Court  had  held,  however,  in  the  case, 
United  States  v.  E.  C.  Knight  Company, {a)  that  this 
statute  applied  to  monopolies  in  restraint  of  interstate  or 
international  trade  or  commerce,  and  not  to  monopolies 
in  the  onaniifacture  even  of  a  necessary  of  life  ;  that  the 
intent  to  manufacture  or  export  a  manufactured  article 
to  foreign  nations  or  to  send  it  to  another  State  did  not 
determine  the  time  when  the  article  or  product  passed 
from  the  control  of  the  State  and  belonged  to  commerce  ; 
and  that,  accordingly,  the  Act  did  not  apply  to  a  com- 
pany engaged  in  one  State  in  the  refining  of  sugar  under 
the  circumstances  detailed  in  that  case,  because  the  refin- 
ing of  sugar  under  those  circumstances  bore  no  distinct 
relation  to  commei'ce  between  the  States  or  with  foreign 
nations. 

Such  is  the  statement  of  the  doctrine  of  that  case  given 
b}^  Mr.  Justice  Peckham  in  the  course  of  his  opinion  in 
the  U.  S.  V.  Trans-Missouri  freight  Association.     The 

(a)  156  U.  S.  1. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  175 

following  extracts  from  the  opinion  of  Mr.  Chief  Justice 
Fuller  will  serve  to  make  the  position  still  more  clear, 
besides  throwing  some  light  on  the  general  subject  under 
discussion  : 

"  The  fundamental  question  is  whether,  concedinij  that  the  exist- 
ence of  a  monopoly  in  manufacture  is  established  l>y  the  evidence, 
that  monopoly  can  be  directly  suppressed  under  the  Act  of  Congress 
in  the  mode  attempted  by  this  bill.  .  .  .  The  arg-ument  is  that  the 
power  to  control  the  manufacture  of  refined  sugar  is  a  monopoly  over 
a  necessary  of  life,  to  the  enjoyment  of  which  by  a  large  population 
of  the  United  Slates  inlerstate  commerce  is  indis[)ensable,  and  that 
therefore  the  general  government  in  the  exercise  of  the  power  to 
regulate  commerce  may  repress  such  monopoly  directly  and  set  aside 
the  instruments  which  have  created  it.  But  this  argument  cannot 
be  confined  to  the  necessaries  of  life  merely,  and  must  include  all 

articles  of  general  consumption. 

*  *  *  *  *  *  * 

"  It  was  in  the  light  of  well-settled  principles  that  the  Act  of 
July  2,  1890,  was  framed.  Congress  did  not  attempt  thereby  to 
assert  the  power  to  deal  with  monopoly  directly  as  such  ;  or  to  limit 
and  restrict  the  rights  of  corporations  created  by  the  states  or  the 
citizens  of  the  states,  in  the  acquisition,  control,  or  disposition  of 
property  ;  or  to  regulate  or  presciibe  the  price  or  prices  at  which 
such  property  or  the  products  thereof  should  be  sold  ;  or  to  make 
criminal  the  acts  of  persons  in  the  acquisition  and  control  of  pro[)erty 
which  the  states  of  their  residence  or  creation  sanctioned  or  per- 
mitted. Aside  from  the  provisions  applicable  where  Congress  might 
exercise  municipal  power,  what  the  law  struck  at  was  combinations, 
contracts,  and  conspiracies  to  monopolize  trade  and  commerce  among 
the  several  states  or  with  foreign  nations  ;  but  the  contracts  and  acts 
of  the  defendants  related  exclusively  to  the  acquisition  of  the  Phila- 
delphia refineries  and  the  business  of  sugar  refining  in  Pennsylvania, 
and  bore  no  direct  relation  to  commerce  between  the  states  or  with 
foreign  nations.  The  object  was  manifestly  private  gain  in  the 
manufacture  of  the  commodity,  but  not  through  the  control  of  inter- 
state or  foreign  commerce,  it  is  true  that  tlie  bill  alleged  that  the 
products  of  these  refineries  were  soM  and  distributed  among  the  sev- 
eral states,  and  that  all  the  companies  were  engaged  in  trade  or  com- 
merce with  the  several  states  and  with  foreign  nations  ;  but  this  was 
no  more  than  to  say  that  trade  and  commerce  served  manufacture  to 


176  RECENT   DECISIONS   AS   TO   CONTRACTS 

fulfil  its  function.  Sugar  was  refined  for  sale,  and  sales  were  prob- 
ably made  at  Philadelphia  for  consumption,  and  undoubtedly  for 
resale  by  the  first  purchasers  throughout  Pennsylvania  and  other 
states,  and  refined  sugar  was  also  forwarded  by  the  companies  to 
otlier  states  for  sale.  Nevertheless  it  does  not  follow  that  an  attempt 
to  monopolize,  or  the  actual  monopoly  of,  the  manufacture  was  an 
attempt,  whether  executory  or  consummate,  to  monopolize  commerce, 
even  though,  in  order  to  dispose  of  the  product,  the  instrumentality 
of  commerce  was  necessarily  invoked." 

Having  thus  rendered  nugatory  the  provisions  of  the 
Act,  for  most  of  the  purposes  obviously  within  its  scope, 
the  court  held,  when  the  Freight  Association  case  came 
before  it,  that  the  statute  did  apply  to  agreements  by  com- 
mon carriers  of  the  nature  of  the  agreement  there  be- 
fore it.  As  said  by  Peckham,  t/.,  in  the  opinion  of  the 
court  -.(a) 

"  To  exclude  such  agreements  would  leave  little  for  1he  act  to  take 
eifect  upon." 

It  was  urged  against  the  applicability  of  the  Act,  that 
such  a  construction  involved  a  repeal  by  implication  of 
the  provisions  of  the  Interstate  Commerce  Act.  But  in 
answer  to  this  argument  the  learned  Justice  pointed  out 
that  the  Interstate  Commerce  Act  contained  no  provi- 
sion either  authorizing  or  prohibiting  such  agreements, 
and  held,  therefore,  that  there  was  no  case  of  repeal  by 
implication  and  no  inconsistency  between  the  two  stat- 
utes. It  is  most  respectfully  submitted  that  in  reaching 
this  conclusion  the  court  lost  sight  of  the  undisputed 
legal  position  that  such  an  agreement  needs  no  statutory 
authority  to  make  it  law^f  ul.  In  the  absence  of  a  statute 
expressly  prohibiting  it,  it  is  lawful  and  always  has  been 
lawful.  Consequently  when  the  Interstate  Commerce 
Act,  though  prohibiting  certain  acts  and  agreements  of  a 
kindred  nature,  yet  left  untouched  the  common-law  right 
of  the  carrier  to  enter  into  an  agreement  for  the  fixing  of 
reasonable  rates  for  its  services,  it  did  in  so  far  expressly 

(a)  166  U.  S.  p.  313. 


IN   RESTRAINT   OF   TRADE   OR   COMMERCE.  177 

continue  the  authority  for  the  making  of  such  agree- 
ments. 

The  decision,  however,  was  otherwise.  By  construc- 
tion based,  upon  previous  decisions  under  other  acts,  it 
was  further  held  that  the  terms  "  trade  and  commerce" 
in  the  Trust  Act  included  the  business  of  transportation 
by  common  carriers  between  the  States. 

It  is  now  apparent  that  in  the  view  of  the  case  taken 
by  the  Supreme  Court  the  validity  of  the  agreement  was 
not  necessarily  affected  by  the  circumstance  that  the  con- 
tracting parties  were  common  carriers  ;  except  in  so  far  as 
their  business  of  interstate  carriage  brought  them  within 
the  scope  of  the  term  "trade  and  commerce  between  the 
states."  The  decision  was  not  rested  upon  the  conceded 
right  of  government  to  control  public  employments.  A 
similar  agreement  for  the  fixing  of  prices  between  parties 
engaged  in  any  other  business,  public  or  private,  would 
have  fallen  under  the  condemnation  of  the  Court,  pro- 
vided the  business  were  within  the  description  of  inter- 
state commerce. 

In  this  aspect,  the  decision  of  the  court  is  covered,  it 
is  respectfully  submitted,  by  the  line  of  historical  state- 
ment, and  legal  argument  which  is  the  main  burden  of 
this  treatise.  It  is  as  a  mere  "  contract  or  combination 
in  restraint  of  trade"  that  the  agreement  in  question  was 
treated  by  the  court.  As  a  violation  of  the  legal  obliga- 
tion of  a  common  carrier  to  charge  only  rates  that  were 
reasonable,  there  might  of  course  have  been  a  ground  for 
criminal  jurisdiction.  If,  on  the  other  hand,  either  of 
the  combining  companies  had  charged  rates  above  those 
fixed  under  the  authority  of  the  Interstate  Commerce 
Commission,  then  their  action  would  have  had  another 
criminal  asj^ect.  But  it  was  conceded  on  the  record,  that 
the  rates  charged  had  been  reasonable.  And  it  was  not 
contended  that  there  had  been  any  violation  of  the  act 
regulating  interstate  commerce. 

The  case  therefore  resolves  itself  into  one  where  the 
mere  act  of  combining — not  to  accomplish  any  unlawful 


178  RECENT   DECISIONS. 

purpose,  or  to  use  any  unlawful  means  for  the  accom- 
plishment of  a  lawful  purpose — was  held  criminal,  under 
a  statute  not  expressly  prohibiting  the  particular  act 
in  question,  and  not  in  terms  referring  to  the  particular 
parties  or  class  of  parties  proceeded  against.  So  regard- 
ed, it  is  submitted  that  the  considerations  urged  against 
the  case  People  v.  Sheldon  apply  with  at  least  equal 
force  here. 

Each  of  these  two  cases  holds  that  a  mere  contract,  to 
fix  rates  or  prices  of  the  property  of  the  parties  contract- 
ing, which  interferes  in  no  respect  with  the  freedom  of 
action  of  all  the  rest  of  the  world  beside,  which  there- 
fore violates  no  legal  right  of  any  member  of  the  entire 
community,  constitutes  a  crime. 

It  is  most  respectfully  submitted,  that  therein  these 
cases  are  irreconcilably  in  conflict  with  the  fundamental 
principles  of  the  English  and  American  law,  as  established 
by  a  long  line  of  authorities,  the  soundness  of  which  has 
never  been  called  in  question. 


CHAPTER   XL 

SOME   GENERAL   CONSIDERATIONS. 

This  discussion  on  these  questions  of  law  really  in- 
volves a  question  of  economics.  That  question  is  this  : 
Do  these  coml)inations,  formed  to  prevent  competition 
among  the  combining  parties,  or  to  raise  prices,  work  any 
sul:)Stantial  damage  to  "  the  public"  ^ 

To  this  question  the  answer  is  to  be  found  in  the  facts 
of  history. 

The  answer  is,  that  the  experience  of  both  the  English 
and  American  peoples,  an  experience  long  and  exhaus- 
tive, shows  that  such  combinations  work  no  substantial 
damage  to  any  but  the  parties  combining.  Such  combina- 
tions have  been  known  in  England  for  centuries.  They 
have  existed  in  this  country  ever  since  the  operations  of 
trade  and  commerce  acquired  large  proportions.  No  in- 
stance can  be  cited,  where  such  a  combination  has  been 
able  to  raise  or  maintain  prices,  of  either  labor  or  mer- 
chandise, above  a  reasonable  figure,  for  any  considerable 
time.  That  is  the  real  reason,  why  those  early  statutes 
were  not  enforced,  why  there  is  an  almost  entire  absence 
in  the  English  reports  of  prosecutions  for  their  violation. 
No  one  was  seriously  damaged.  No  one  had  any  sense 
of  injury.  Such  combinations  have  been  formed  without 
number  in  the  history  of  English  and  American  trade,  to 
raise  and  maintain  the  prices  of  all  the  necessaries  of 
life,  of  wheat,  corn,  lard,  pork,  coal,  of  substantially  all 
the  staples  of  commerce.  No  such  combination  has  ever 
had  any  substantial  result,  other  than  to  make  a  slight 
rise  in  prices,  in  some  local  market,  for  a  very  short 
time.     The  only  substantial  result,  to  others  than  the 


180  SOME   GENERAL   CONSIDERATIONS. 

parties  combining,  has  been  the  wreck  of  a  few  specula- 
tors. These  combinations  to  raise  prices  have  been  made, 
not  only  in  the  staples  of  commerce,  of  which  the  sup- 
ply, especially  in  these  modern  times,  is  always  large 
and  unknown,  but  in  stocks  and  securities,  of  which  the 
supply  is  limited  and  exactly  ascertainable.  The  result 
has  been  invariably  the  same,  in  cases  of  both  classes  ; 
only  a  temporary  "  flurry  in  the  market."  The  reason  is 
not  hard  to  find.  Tlie  combinations  always  come  to  an 
end  from  their  own  inherent  necessities.  The  advance  of 
prices  is  only  their  primary  jourpose  ;  their  ultimate  pur- 
pose is  the  making  of  sales  at  the  prices  so  advanced.  If 
the  prices  are  advanced  too  high,  sales  cease,  and  prices 
soon  fall  to  a  figure  that  is  warranted  by  the  existing 
supply  and  demand.  The  unfailing  protection  of  the 
community  at  large  is  always  to  be  found  in  the  interest 
account.  Large  amounts  of  merchandise  cannot  be  car- 
ried without  large  amounts  of  money,  involving  in  one 
form  or  another  the  payment  of  large  amounts  of  interest. 
Meantime,  in  the  case  of  all  staples,  all  "  articles  of 
prime  necessity,"  the  streams  of  supply  continue  to 
pour  in.  Sooner  or  later,  and  always  soon,  the  growth  of 
the  interest  account,  with  the  impending  danger  of  a  fall- 
ing market,  compels  sales  ;  and  the  sales,  when  m_ade, 
must  be  made  at  prices  which  buyers  are  willing  to  pay. 
If  the  combinations  are  small,  then  it  is  easy  to  buy  from 
other  sellers.  If  the  combinations  are  large,  then  it  is  a 
virtual  certainty,  that  some  of  the  combining  parties  will 
soon  break  away  from  the  combination,  or  prices  will  be 
the  sooner  reduced  by  the  increase  in  the  interest  account. 
Many  men  in  modern  times  have  been  alarmed  by 
the  mere  magnitude  of  the  masses  of  capital  employed 
in  the  great  modern  so-called  "trusts."  But  this 
alarm  has  no  sound  foundation.  It  is  in  that  very 
magnitude,  that  "  the  public,"  and  every  individual 
member  of  it,  has  the  surest  protection.  The  reason  is, 
that  where  capital  is  invested  in  special  industries  in  such 
large  masses,  the  magnitude  of  the  investments,  and  of 


SOME   GENERAL   CONSIDERATIONS.  181 

the  expenditures,  with  the  necessity  of  paying  interest 
and  dividends,  compels  the  investors  to  put  prices  down 
to  figures  which  will  bring  buyers,  and  bring  them 
quickly.  Moreover,  the  investment  of  large  amounts  of 
capital  in  single  enterprises  invariably  leads  to  large 
economies.  The  reason  is,  that  the  amount  of  waste 
reaches  larger  figures,  and  therefore  makes  a  larger  im- 
pression on  the  minds  of  managers.  In  addition  to  that 
fact,  the  larger  the  number  of  men  there  are  employed  in 
a  single  business,  the  greater  is  the  certainty  that  some 
of  them  will  find  new  materials,  and  devise  new  pro- 
cesses, to  be  used  in  that  business.  The  uniform  ex- 
perience, therefore,  has  been  that  the  modern  methods, 
of  consolidation,  and  concentration  of  large  masses  of 
capital  in  single  industries,  have  caused  large  decreases 
in  price,  and  have  thus  prevented  the  very  results  which 
have  so  long  been  dreaded  as  likely  to  be  their  outcome. 
Bat  we  get  still  more  light  on  this  branch  of  our  exami- 
nation from  the  course  of  prices  in  the  instances  of  genu- 
ine "monopolies,"  which  exist  in  large  numbers  under 
our  law,  and  are  fostered  by  it.  Every  patent  is  a  "  mo- 
nopoly." Every  author's  copyright  is  a  "monopoly." 
Every  railroad  company  has,  to  a  certain  extent,  a  "  mo- 
nopoly"— that  is,  it  has  a  property  which  is  sole  and 
exclusive,  and  is  made  such  by  law.  In  all  these  cases 
it  has  invariably  proved  an  impossibility  in  practice,  for 
the  owners  of  patents  to  keep  up  the  prices  of  their 
patented  articles,  or  for  the  owners  of  copyrights  to  keep 
up  the  prices  of  their  books,  above  what  is  reasonable,  in 
other  words,  above  what  buyers  are  willing  to  pay.  If  a 
buyer  is  not  willing  to  pay  the  price  of  the  seller,  he  sim- 
ply declines  to  buy.  He  buys  something  else.  Or  he 
goes  without.  In  that  course  the  buyer  has  always  found 
adequate  protection.  Suppose  that  some  individual  to- 
day had  a  strict  legal  "monopoly"  in  wheat,  and  then 
made  the  attempt  to  raise  the  price  of  wheat  unduly.  The 
immediate  result  would  be  that  people  would  use  other 
kinds  of  food.     To  "  corner"  wheat  successfully,  a  man 


182  SOME   GENERAL   CONSIDERATIONS. 

must  be  able  to  "  corner"  corn,  rye,  rice,  oatmeal,  peas 
and  beans,  M'ith  other  kinds  of  food  products  too  numer- 
ous to  mention.  He  might  as  well  try  to  "  corner"  the 
ocean.  Every  article  of  trade  and  commerce,  staple  or 
other,  has  to  compete  with  many  other  articles,  which, 
though  not  i^recisely  identical,  can  be  made  to  serve  sub- 
stantially the  same  uses.  In  this  way,  even  railroads,  in 
effect,  compete  with  other  railroads,  although  their  con- 
trol of  their  own  traffic  seems  at  tirst  sight  to  be  without 
limitation.  Take  the  case  of  any  railroad  leading  into  one 
of  our  large  cities.  In  effect,  it  has  to  comjDete  with  other 
roads  which  tap  other  territory.  If  its  rates  are  higher 
than  those  of  other  roads,  for  i)assengers  or  merchandise, 
X)eople  will  move  away  and  live  on  other  lines.  Aside 
from  that,  however,  every  owner  of  a  railroad,  of  a  patent, 
of  a  book,  or  of  property  of  any  kind,  finds  that  he  makes 
more  money  by  putting  prices  down  to  figures  that  are 
reasonable,  that  is,  to  figures  which  correspond  to  the 
values  of  the  things  sold  to  the  buyers,  than  by  keeping 
them  up  beyond  those  figures. 

Prices  must  be  left  to  that  kind  of  regulation.  They 
need  no  other.  No  other  can  be  just.  All  attempts  to 
regulate  prices  by  the  arm  of  the  law,  directly  or  indi- 
rectly, bj;^  direct  legislation,  or  by  criminal  indictment, 
have  resulted  in  failure.  Experience  shows,  that  there  is 
no  way  practicable  for  the  right  fixing  of  prices,  except  by 
competition  of  one  kind,  that  is,  competition  between 
buyers  and  sellers.  That  kind  of  competition  will  al- 
ways exist,  and  will  always  be  found  effectual  to  fix 
j)rices  at  figures  which  are  reasonable,  and  therefore  just. 
That  is  all  that  we  have  the  right  to  ask.  It  is  all  that 
we  can  get. 

Many  economists,  and  many  jurists  and  legislators.,  in 
their  consideration  of  these  questions,  have  had  an  espe- 
cial fear  of  the  large  modern  combinations  of  capital  in 
the  hands  of  cor23orations.  Corporations,  in  this  respect, 
have  seemed  more  dangerous  than  individuals.  This  is 
a  i)oint  which  calls  for  some  attention. 


SOME   GENERAL   CONSIDERATIONS.  183 

In  my  opinion,  this  is  an  unsound  position.  On  the 
contrary,  it  will  appear,  that  the  interests  of  the  com- 
munity, and  especially  of  that  portion  of  the  community 
which  some  men  term  the  laboring  classes,  will  be  best 
served  by  giving  the  largest  possible  facilities  for  the  for- 
mation of  corporations,  and  by  ensuring  the  fullest  degree 
of  freedom  and  protection  to  their  proi^erty  and  business. 
The  well  being  of  the  laborer,  and  most  of  us  are  laborers, 
depends  especially  on  a  combination  of  three  conditions  : 
they  are,  large  variety  of  employment,  high  and  stable 
rates  of  wages,  low  and  stable  prices  of  all  kinds  of  mer- 
chandise which  he  needs  to  use.  These  three  conditions 
can  be  obtained,  only  by  giving  every  facility,  and  every 
protection,  to  the  employment  of  capital  in  large  masses, 
under  continuous  and  stable  management.  Such  emploj'^- 
ment  of  large  masses  of  capital  can  be  had  only  through 
the  agency  of  large  corporations.  By  such  agencies,  in 
the  main,  has  come  the  great  reduction  in  the  prices  of 
nearly  all  manufactured  products,  including  articles  of 
food,  which  has  been  the  distinguishing  feature  in  the 
history  of  modern  industry.  This  decrease  in  the  prices 
of  manufactured  products  has  at  the  same  time  been  ac- 
companied by  a  decrease  in  the  profits  of  capital,  and  an 
increase  in  the  rates  of  wages.  These  results,  it  is  evi- 
dent, can  be  had  only  under  modern  methods,  by  the  em- 
ployment of  large  masses  of  capital,  under  continuous 
management,  which  will  ensure  large  business  experience 
in  the  men  at  the  head,  with  a  continuous  steady  supply 
of  new  men  in  each  separate  department,  to  take  the 
places  of  old  men  as  they  die  and  retire.  It  is  evident, 
too,  that  these  large  businesses,  under  stable  control,  such 
as  is  possible  onlj^  in  large  and  rich  corporations,  furnish 
the  best  practicable  security  that  every  workman  will  be 
able  to  find  his  own  level,  with  steady  employment  at 
stable  wages  fitted  to  the  quality  of  his  work.  At  times 
we  hear  laments  over  the  disappearance  of  the  indepen- 
dent individual  proprietor,  resulting  from  the  increase  in 
the  number  of  these  large  corporate  industries.     These 


184  SOME   GENERAL   CONSIDERATIONS. 

laments  lose  sight  of  the  fact,  that  comparatively  few 
men  have  the  soundness  of  judgment,  and  the  business 
capacity,  which  fits  them  to  be  independent  employers. 
It  is  not  an  advantage,  either  to  the  individual  or  to  "  the 
public,"  that  the  individual  should  waste  his  energies  in 
work  of  independent  superintendence,  when  he  is  unfit 
for  such  work.  The  large  majority  of  men  in  the  great 
armies  of  industry  are  fit  only  for  the  positions  of  subor- 
dinates. It  is  for  the  advantage  of  no  one,  that  time  and 
money  should  be  wasted  in  their  fruitless  efforts  to  fill 
the  places  of  superiors.  Let  them  fall  into  the  ranks,  or 
into  positions  of  subordinate  leadership,  into  the  places 
which  they  are  fit  to  fill.  The  interests  of  all  are  best 
served  by  having  our  industrial  armies  led  by  the  natu- 
ral leaders,  who  are  sure  to  find  the  places  at  the  head,  if 
they  have  an  open  field — and  time.  These  conditions  are 
to  be  had  only  when  industries  are  organized  on  a  large 
scale,  and  under  conditions  of  permanence.  That  is  a 
possibility  only  by  the  agency  of  large  and  rich  corpora- 
tions. 

But  some  men  look  at  capital  in  the  large  modern 
community  as  a  separate  single  mass,  under  a  separate 
single  control,  handled  in  a  sole  interest  antagonistic  to 
the  interests  of  the  community  in  general,  and  esi:)ecially 
of  the  laboring  classes.  That  is  an  error.  Ca])ital  never 
has  been  under  one  control,  and  it  never  can  be.  To-day 
it  is  more  impossible  than  ever  before,  by  reason  of  its 
magnitude.  The  ownership  of  capital  is,  and  always 
must  be,  diverse.  Its  interests  are  diverse.  Between  all 
those  diverse  interests  there  is  never-ending  competition. 
That  cannot  be  avoided,  or  prevented.  Any  consolida- 
tion, of  its  interests,  or  of  its  control  in  single  hands,  is 
an  economic  impossibility. 

The  increase  in  the  size  of  the  modern  masses  of  capital 
is  only  in  keeping  with  the  increase  in  wealth  throughout 
the  entire  community.  These  masses  of  capital  have  the 
same  increase  in  all  directions.  Even  if  this  increase  were 
confined  to  a  single  industry,  there  would  be  no  solid 


SOME   GENERAL   CONSIDERATIONS.  185 

danger  therefrom.  For  any  attempt  on  its  part  to  secure 
undue  advantages  would  at  once  arouse  a  combination  of 
other  industries  and  other  financial  interests  in  self-de- 
fence against  its  aggressions.  But,  as  matter  of  fact,  the 
increase  of  masses  of  cai:)ital  takes  place  in  industries  of 
all  kinds,  and  thereby  insures  the  diversity  of  interests 
which  constitutes  the  protection  of  the  community  against 
the  possible  encroachments  of  any  one. 

If  it  be  said,  that  the  increase  of  these  masses  of  capi- 
tal constitutes  a  menace  to  labor,  the  answer  is  that  labor 
can,  and  does,  consolidate,  and  concentrate,  as  well  as 
caj)ital.  Thus  far  consolidated  labor  has  had  decidedly 
the  best  of  the  contest  between  the  two.  And  there  seems 
no  reason  to  apprehend  any  different  result  in  the  future. 
Since  the  great  increase  in  the  quantity  of  machinery 
used  in  modern  industries,  an  increase  which  it  was  at 
first  supposed  would  displace  labor,  and  thereby  decrease 
wages,  the  actual  result  has  been  an  increase  in  wages,  and 
a  decrease  in  the  rates  of  interest.  At  the  same  time 
there  has  been  a  remarkable  increase  in  the  quantity 
and  quality  of  the  articles  which  the  laborer  can  procure 
with  his  wages.  No  doubt,  there  has  been  an  increase  in 
the  number,  and  the  size,  of  the  great  fortunes.  But  at 
the  same  time  there  has  been  a  great  increase  in  the  rates 
of  wages  of  the  industrial  classes,  and  a  great  improve- 
ment in  their  general  condition.  Experience  shows  that, 
in  its  contest  with  capital,  labor  is  well  able  to  take  care 
of  itself.     We  need  have  no  fears  for  its  future. 

Whichever  way  we  consider  it,  we  shall  lind,  that  the 
immense  increase  in  the  modern  masses  of  capital  is  only 
comparative— that  it  is  not  out  of  proportion  with  the 
growth  of  society,  and  of  its  means  for  keeping  capital  in 
its  proper  position  of  involuntary  servitude.  Capital 
must  be  employed  ;  else  it  is  fruitless.  It  must  employ 
labor  ;  else  it  has  no  employment  for  itself.  Labor  can 
get  on  without  capital  better  than  capital  can  get  on  with- 
out labor.  Each  must  use  the  other.  Neither  will,  in 
the  long  run,  get  more  than  its  just  dues.     Each  can  well 


186  SOME   GENERAL   CONSIDERATIONS. 

take  care  of  itself.  Each  is  fully  protected  by  the  indus- 
trial laws. 

It  is  time  that  these  large  combinations  of  capital,  these 
oreat  agencies  of  modern  civilization,  should  be  looked  at 
in  their  true  light.  It  is  always  to  be  assumed,  that  their 
owners  will  handle  their  large  properties  with  a  view  to 
their  own  interests,  and  their  own  profit  ;  that  their  man- 
agement will  be  selfish.  But  the  inevitable  and  inexorable 
laws  of  trade  and  commerce  compel  the  owners  of  capital, 
whether  they  will  it  or  not,  to  be  public  servants.  Take  the 
case  of  any  of  our  most  powerful  and  prosperous  railroads. 
They  are  all  managed  on  selfish  business  principles,  with  a 
view  to  the  profi  t  of  their  owners.  Yet  they  are  compelled, 
whether  they  will  it  or  not,  to  be  great  public  charities. 
The  reason  is,  that  the  successful  management  of  such 
great  properties  impei'atively  demands  the  employment 
of  large  armies  of  men  who  are  honest,  capable,  and  in- 
dustrious. Such  men  command  employment,  at  good 
wages,  at  all  times  and  places.  These  great  railroad  com- 
panies cannot  get  such  men,  unless  they  pay  them  well. 
Moreover,  their  employees  must  be  men  of  experience, 
each  one  used  to  his  own  work,  and  all  used  to  working- 
together.  In  other  words,  these  employees  must  be  kept 
in  the  service  permanently.  So  that  the  practical  result 
is,  that  these  great  corporations  are  compelled,  whether 
they  wish  it  or  not,  to  give  permanent  employment,  at 
reasonable  wages,  to  honest  and  industrious  men.  They 
become  public  charities,  of  the  best  kind.  So  it  is  with 
all  large  industries. 

But  these  large  masses  of  capital  can  be  had,  and  used 
to  the  best  effect,  only  if  capital  is  secure.  Capital  is 
i:)roverbially  timid.  Give  it  security,  throw  around  it 
every  protection  possible  under  the  law,  and  we  shall 
draw  it  in  large  amounts,  adequate  to  our  largest  needs, 
from  all  quarters  of  the  globe.  Thereby  the  laborer  will 
secure  the  fullest  variety  of  employment.  Bring  it  here 
in  the  largest  masses  possible.  Give  it  the  fullest  liberty 
l^ossible.     In  that  way  alone  can  we  secure  the  amplest 


SOME   GENERAL   CONSIDERATIONS.  187 

supply  of  it  for  the  prosecution  of  everj^  form  of  industry 
that  man  can  make  profitable.  Labor  will  thereby  secure 
its  fullest  possibilities  of  a  diversity  of  profitable  employ- 
ment. But  those  conditions  can  be  secured  only  through 
the  agency  of  large  rich  corporations.  The  more  there  are 
of  them,  the  more  keen  will  be  the  competition  of  capital 
for  the  highest  grades  of  labor. 

It  is,  therefore,  unnecessary,  to  make  the  attempt  by 
statutes  or  by  any  provisions  of  the  civil  or  criminal  law, 
to  protect  the  public  against  the  raising  of  prices  by  large 
combinations  of  capitalists.  The  protection  against  such 
efforts  is  to  be  found  in  the  natural  laws  of  trade  and 
commerce.  That  protection  has  always  been  found 
adequate. 

But  if  such  i^rotection  were  not  adequate,  the  history 
of  the  attempts  to  get  it  from  statutes,  and  from  the 
criminal  law,  shows  that  it  is  not  to  be  found  in  that 
direction.  Those  attempts  have  uniformly  had  one  re- 
sult—failure. They  have  also  had  another  result,  the 
annoyance  of  that  portion  of  the  community  who  honest- 
ly try  to  obey  the  law.  Moreover  they  are  directly  in 
opposition  to  the  tendencies  of  modern  industrial  devel- 
opment. Those  tendencies  are  in  the  line  of  consolida- 
tion, concentration,  and  organization.  In  a  less  degree, 
those  tendencies  were  apparent  in  the  medijeval  guilds. 
But  at  the  present  day  the  growth  of  trades  unions,  of 
exchanges,  and  industrial  associations  of  all  kinds,  for 
the  protection  of  the  interests  of  their  members  is  more 
marked  than  ever  before.  It  is  one  of  the  ordinary 
features  of  such  organizations  to  have  regulations  of  the 
rates  and  wages  of  their  members. 

Now,  in  principle,  where  is  there  any  reasonable  legal 
basis  for  a  distinction  between  the  right  of  the  sellers  of 
labor  to  agree  on  the  price  of  their  own  labor,  and  the 
right  of  the  sellers  of  merchandise  to  agree  on  the  price 
of  their  own  merchandise  ''i  None  can  be  given.  The 
seller  of  one  has  the  same  legal  rights  with  the  seller  of 
the  other,  no  greater  and  no  less.     So  it  was  under  the 


188  SOME   GENERAL   CONSIDERATIONS. 

English  common  law.  So  it  was  under  the  English  stat- 
utes. So  it  was  under  our  law,  it  is  respectfully  sub- 
mitted, until  the  decision  in  People  v.  Slieldon^  followed 
by  the  decision  in  the  Freight  Association  case,  with 
others  in  the  same  line. 

Our  law  duly  recognizes,  in  manifold  ways,  the  obliga- 
tion resting  on  the  State  to  make  adequate  provision  for 
the  poor  and  needy  who  are  unable  to  help  themselves,  in 
the  matter  of  food,  clothing,  and  shelter.  In  the  dis- 
charge of  that  obligation,  the  State  is  bound  to  purchase 
many  "  articles  of  jorime  necessity."  But  it  has  not  the 
right,  to  compel  a  sale  of  such  articles,  by  their  owners, 
to  persons  who  may  need  them,  either  directly  or  indirect- 
ly, by  statute  or  indictment.  For  the  due  discharge  of 
that  obligation,  the  State,  in  times  of  stress,  may  find  it 
necessary  to  take  private  property  for  public  use.  There 
might  easily  arise  instances,  in  a  time  of  war,  in  the  midst 
of  actual  military  operations,  when  a  military  commander 
would  find  himself  compelled  to  supjjly  the  population  of 
a  city,  or  of  a  district,  with  food,  and  would  be  compelled, 
in  order  to  do  so,  to  seize  large  quantities  of  food  supplies. 
But  our  law  recognizes  no  right  vested  in  the  State,  in  the 
discharge  of  its  ordinary  legal  obligations,  to  transfer  the 
property  of  one  person  to  another.  Yet  that  is  what  it 
really  assumes  to  do,  as  shown  in  Tat/lor  v.  Porter,  when 
it  undertakes  to  fix  prices  hy  statute.  That  is,  too,  what 
it  really  tries  to  do— indirectly — when  it  attempts  to  keep 
down  prices  by  indictment. 

Let  us  now  consider  the  positions  which  we  have 
reached. 

Certain  propositions,  it  is  submitted,  are  well  estab- 
lished. 

I.  The  only  possible  loss,  or  damage,  to  any  individual, 
or  to  that  combination  of  individuals  which  we  term  the 
community,  resulting  from  combinations  of  the  kind 
here  under  consideration,  consists  in  a  slight  temporary 
raising  or  enhancing  of  prices.  No  loss  or  damage  to 
any  one,  to  any  individual,  or  to  the  community,  can 


SOME   GENERAL   CONSIDERATIONS.  189 

come  from  the  mere  act  of  combination,  or  agreement  ; 
and  this  raising  or  enhancing  of  i^rices  works  precisely 
the  same  loss  or  damage,  whether  it  result  from  the  act 
of  one  individual  separately,  or  of  several  individuals  in 
combination. 

II.  The  existence  of  a  standard  of  prices  fixed  by  law 
is  the  sole  legal  foundation  on  which  can  rest  the  unlaw- 
ful or  criminal  quality  of  the  mere  act  of  raising  prices, 
or  preventing  competition  between  the  parties  combining. 

If  prices  are  fixed  by  statute,  then  every  buyer  has  the 
right  in  law  to  buy  at  the  prices  so  fixed  ;  and  he  suffers 
a  legal  injury  if  any  seller  raises  prices  to  a  figure  above 
the  ones  so  fixed.  In  such  a  case,  the  raising  of  prices 
above  the  statutory  figure  is  an  act  in  violation  of  the 
legal  rights  of  buyers,  and  may  be  a  crime.  Its  criminal 
quality  is  the  same,  wiiether  such  raising  be  the  act  of 
one  individual  separately,  or  of  several  individuals  in 
combination.  If,  on  the  contrary,  i^rices  are  not  fixed  by 
statute,  then  no  one  has  the  legal  right  to  buy  at  any 
fixed  price  ;  then,  too,  no  one  suffers  a  legal  injury  from 
any  raising  of  prices.  It  follows,  then,  in  that  case,  that 
a  combination  to  raise  prices  is  not  a  combination  to  do 
an  act  that  is  unlawful.     It  is,  therefore,  not  a  crime. 

III.  The  early  English  Statutes  went  on  that  idea. 
They  fixed  prices  by  statute.  Thereby  they  gave  buyers 
certain  definite  legal  rights.  Thereby  they  made  it  a  vio- 
lation of  those  rights  to  raise  prices  above  the  rates  so 
fixed.  And  such  raising  of  prices  was  eepially  unlawful, 
whether  done  by  a  single  individual  separatel}^,  or  by 
more  than  one  in  combination. 

ly.  The  crimes  arising  under  this  branch  of  the  law 
were  well  known,  in  the  English  law,  under  the  general 
classification  of  "  Offences  against  Public  Trade  ;"  and 
under  definite  legal  terms,  "  forestalling,"  "  engrossing," 
and  "  regrating." 

V.  The  raising  of  prices  was  also  made  a  crime  under 
some  of  our  early  statutes,  under  a  scheme  of  legislation 
of  the  same  nature  with  that  of  the  early  English  stat- 


190  SOME   GENERAL   CONSIDERATIONS. 

ntes.  The  crimes  created  by  those  early  statutes  had 
assigned  to  them  the  old  well-recognized  English 
names. 

VI.  Those  early  State  statutes  were  either  repealed,  or 
became  obsolete. 

VII.  Thereafter,  until  recent  interpretations  by  some 
of  our  courts  of  mere  general  phrases,  which  made  crimes 
of  combinations  to  do  "  acts  injurious  to  trade  or  com- 
merce," no  authority  exists,  which  has  come  under  my 
observation,  which  holds  that  a  mere  agreement,  to  raise 
or  maintain  prices,  of  the  property  of  the  parties  combin- 
ing, or  for  the  mere  regulation  of  the  action  of  the  par- 
ties combining,  constitutes  a  crime. 

VIII.  On  the  contrary,  there  was  a  large  class  of  com- 
binations, which,  from  a  very  early  period  in  the  English 
law,  were  held  to  be  indictable  conspiracies.  Such  were 
all  combinations  "to  injure  individuals,"  that  is,  to  de- 
prive other  individuals  than  the  parties  combining  of 
recognized  legal  rights.  Such  combinations,  especially 
combinations  by  a  number  of  individuals  to  injure  another 
in  his  business  or  trade,  were  manifold  in  form.  So  far 
as  I  have  been  able  to  discover,  such  combinations  be- 
came criminal  under  no  statute.  If  any  acts  can  be  con- 
sidered crimes  at  common  law,  those  acts  are  such.  Here 
then  was  a  large  class  of  crimes  which  were  "  acts  in- 
jurious to  trade  and  commerce,"  and  which  came  prop- 
erly under  no  other  classification. 

In  view  of  these  positions,  how  should  our  courts  inter- 
pret statutes  which  make  it  an  indictable  conspiracy  for 
persons  to  combine  to  do  acts  "  injurious  to  trade  or  com- 
merce" i 

It  is  respectfully  submitted,  that  they  should  follow 
the  common  law,  and  that  long  line  of  authorities  in  our 
tribunals  of  the  highest  weight,  which  hold,  with  an  un- 
varying tenor,  that  the  essence  of  a  crime  is  an  "  injury," 
that  is,  the  violation  of  some  legal  right,  and  which  hold 
especially,  as  to  the  crime  of  conspiracy,  that  an  agree- 


SOME   GENERAL   CONSIDERATIONS.  191 

ment,  or  combination,  which  is  to  be  criminal,  must  con- 
temphite  the  doing  of  some  act  that  is  unlawful,  either 
as  means  or  end.  A  mere  agreement  to  do  an  act  is  only 
the  initial  stage  of  that  act.  With  all  possible  deference  to 
our  two  most  august  tribunals,  it  appears  to  be  an  error 
in  legal  reasoning,  to  hold  that  the  mere  agreement,  the 
mere  initial  stage  of  an  act,  can  constitute  a  crime,  when 
the  act  itself,  when  consummated,  will  violate  no  legal 
right.  And  it  is  further  submitted,  as  before  stated,  that 
the  correct  legal  interpretation  of  the  phrase  an  "  act  in- 
jurious to  trade  or  commerce"  is,  that  it  means  an  act 
which  violates  some  legal  right  in  connection  with  trade 
or  commerce. 

One  further  consideration  may  be  added.  The  United 
States  Supreme  Court  has  laid  down  the  following  as 
one  of  the  guiding  principles  in  the  interpretation  of 
statutes  :(«) 

*'  Even  in  construing  the  terms  of  a  statute,  courts  must  take  no- 
tice of  the  histor}'  of  legislation,  and  out  of  different  possible  con- 
structions, select  and  ap{)ly  the  one  that  best  comports  with  the  f/enius 
of  our  institutions  and  is  therefore  most  likely  to  have  been  the  con- 
struction intended  by  the  law-making  power." 

"  The  history  of  legislation,"  as  set  forth  in  the  preced- 
ing pages,  seems  to  make  it  clear,  that  attempts  to  con- 
trol the  contractual  freedom  of  persons  engaged  in  trade 
and  commerce  have  been  found  unwise  and  pernicious. 
The  "  genius  of  our  institutions"  is  overwhelmingly  in 
favor  of  emancipation  from  all  restrictions  on  complete 
contractual  freedom — in  private  employments. 

In  public  employments — wise  jurists  and  wise  legisla- 
tors are  well  agreed,  that  the  individual  citizen  must  have 
all  needful  protection  at  the  hands  of  the  State. 

But  what  are  we  to  say  of  the  latest  attempt  at  State 
control  of  trade  and  commerce,  in  private  employments  i 


(a)  Texas  &  Pac.  R.  Co.  v.  Interstate  Commerce  Commission,  163  U.  S.  197, 
218. 


192  SOME   GENERAL   CONSIDERATIONS. 

In  a  recent  issue  of  our  daily  press  we  find  tlie  follow- 
ing statement  :{a) 

"ANTITRUST   AMENDMENT. 

"  Washington,  June  29. — The  Republican  members  of  the  Judi- 
ciary Committee  at  a  meeting  this  morning  agreed  upon  the  follow- 
ing form  of  an  amendment  to  the  Tariff  Bill  : 

"  '  Every  person,  firm,  or  corporation  who  shall  nionopolize  or 
engross,  or  attempt  to  monopolize  or  engross,  or  who  shall  combine 
or  conspire  with  any  other  person,  firm,  or  corporation  to  monopolize 
or  engross  the  trade  or  commerce  in  any  article,  among  the  several 
States  or  with  foreign  nations,  for  the  purpose  of  unduly  enhancing 
the  price  of  such  article,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  shall  be  punished  by  a  fine  of  not  less  than 
|500  nor  more  than  |10,000,  and  by  imprisonment  at  hard  labor  not 
less  than  six  months  nor  more  than  two  years  ;  and  in  case  of  a  cor- 
poration found  guilty  of  said  offence  Ihe  jury  shall  also  ascertain  and 
find  what  officers  of  the  corporation  caused  or  directed  the  corpora- 
tion to  commit  such  offence,  and  such  officers,  on  being  found  guilty 
of  causing  or  directing  Ihe  corporation  to  commit  the  offence  of 
which  it  is  found  guilty,  shall  be  liable  to  the  punishment  aforesaid. 
It  shall  be  a  sufficient  pleading,  in  the  indictment,  to  describe  the 
offence  in  Ihe  language  of  this  law  ;  and  the  fact  that  a  manufacturer 
or  dealer  refuses  to  sell  1o  the  public  in  interstate  or  foreign  trade 
otherwise  than  through  special  factors  or  agents  shall  be  deemed 
jjrima  facie  evidence  of  monopolizing  or  attempting  to  monopolize 
the  trade  among  the  several  States  or  with  foreign  nations. 

"  '  The  several  circuit  courts  of  the  United  States  are  hereby  in- 
vested with  jurisdiction  to  prevent  and  restrain  violations  of  this 
law  ;  and  it  shall  be  the  duty  of  the  several  District  Attorneys  of  the 
United  States  in  their  respective  districts,  under  the  direction  of  the 
Attorney-General,  to  institute  proceedings  in  equity  to  prevent  and 
restrain  such  violations.  Such  proceedings  may  be  by  the  way  of  a 
petition  setting  forth  the  case  and  praying  that  such  violation  shall 
be  enjoined  or  otherwise  proliibited.  When  the  parties  complained 
of  shall  have  been  duly  notified  of  such  petition  the  court  shall  pro- 
ceed, as   soon   as   may  be,  to  the  hearing  and   determination  of  the 

(a)  New  York  Sun,  June  30,  1897. 


SOME  GENERAL   CONSIDERATIONS.  193 

case,  and,  pending  sucli  petition  and  before  final  decree  the  court 
may  at  any  time  make  such  temporary  restraining  order  or  prohibi- 
tion as  shall  be  deemed  just  in  the  premises.'  " 

What  shall  we  have  next  in  the  course  of  the  present 
anarchistic  crusade  against  capital  and  property  ? 

And  at  such  a  time,  where  shall  we  find  the  two  courts 
which  have  heretofore  been  the  bulwarks  on  which  we 
could  always  depend — for  the  x'>rotection  of  life,  liberty, 
and  property  \ 


GENERAL  INDEX. 


Apprenticeship,  33,  34. 
"  Anti-Tkust"  Act,  172. 

considered  in  connection  with  Interstate  Commerce  Act,  173. 
provisions  of,  as  to  mouopolies,  174. 
U.  S.  V.  E.  C.  Knight  Company,  174. 
effect  of  this  decision  upon,  176. 

held  not  inconsistent  with  Interstate  Commerce  Act,  176. 
Bl.vckstone, 

definition  of  offences  against  public  trade,  91. 
definition  of  conspiracy,  90. 
definition  of  crime,  147. 
Buyers  and  Sellers, 

respective  rights  of,  in  matter  of  control  of  prices,  143. 
buyers  have  been  objects  of  law's  solicitude,  144. 
sellers  are  entitled  to  equal  protection,  144. 
tlie  "  public  interest,"  145. 
in  fact  all  are  both  buyers  and  sellers,  145. 
the  "  public  interest"  must  be  left  to  the  parties,  145. 
duty  of  the  State  to  afford  equal  rights  and  protection,  146. 
no  distinction  between  sellers  of  labor  and  of  merchandise,  146. 
or  between  sellers  of  "  articles  of  necessity"  and  others,  146. 
Capital, 

effects  of  concentration  of,  181. 
corporations  the  best  agency  to  handle,  184. 
ownership  of,  always  diverse,  184. 
increase  of,  proportionate  to  increase  in  wealth,  184. 
relations  of,  to  labor,  185. 
necessity  for  security  of,  186. 
Colonial  law, 

entire  absence  at  first  of  attempts  to  fix  prices,  3. 
congressional  action  during  revolution,  4. 
very  soon  repealed,  4. 
Combinations  to  fix  prices 

made  criminal  conspiracies  by  early  English  Statutes,  43. 

previous  law  as  to  conspiracy,  44. 

essence  of  such  crime  the  fixing  prices  contrary  to  laic,  46. 

such  statutes  only  one  feature  of  attempts  to  control  prices,  etc.,  82. 

statute  a  dead  letter  as  to  prices  of  merchandise,  46,  47,  49. 


196  GENERAL   INDEX. 

only  one  case  as  to  prices  of  labor,  46,  47,  49, 

later  statutes  recognize  workmen's  right  to  combine,  47. 

English  law  as  finally  established,  49 

permits  such  combinations  provided  no  legal  injury  to  others,  49. 

Mogul  S.  S.  Co.  V.  McGregor,  50. 

of  merchandise  and  of  labor  on  same  footing,  83. 

(See  "  Conspiracies  to  commit  acts  injurious  to  trade  or  commerce.") 

classified  by  Blackstone  under  "  Monopolies,"  93. 

and  so  considered  in  recent  decisions,  94. 

but  not  with  legal  accuracy  to  be  so  regarded,  94. 

Euglish  statutes  as  to,  never  part  of  our  law,  96,  137. 

Commonwealth  v.  Hunt,  96. 

Commonicealth  v.  Carlisle,  97. 

departure  from  the  law  in  recent  cases,  135. 

People  V.  Sheldon,  135,  140. 

U.  8.  V.  Trans- Missouri  Freight  Assn.,  135,  170. 

definition  of  conspiracy  applied  to  such  combinations,  149. 

no  legal  right  to  buy  at  any  price  in  absence  of  statute  fixing  price, 

149. 
no  legal  injury  by  refusal  to  sell,  153,  158. 
decision  as  to,  in  Freight  Assn.  case  same  as  in  People  v.  Sheldon, 

170. 
this  point  explained,  177. 

reasonableness  of  prices  fixed  not  a  consideration,  177. 
decision  of  the  two  cases  summarized,  178. 
economic  aspects  of,  179. 
experience  shows  no  damage  done  by,  179. 
reason  is  found  in  the  interest  account,  180. 
Common  Carrieus, 

English  statute  law  as  to,  86-88. 
great  increase  in  control  of,  117. 
large  number  of  American  statutes  regulating,  117. 
also  cases  of  intervention  by  courts,  118. 
People  V.  New  York  Central,  etc.  R.  R.  Co.,  118. 
Railroad  Commissioners  of  New  York,  statute,  130. 
Transportation  Corporations  Law  of  New  York.  133. 
Lough  V.  Outerbridge,  169. 
Competition, 

contracts  to  restrict  between  parties  combining,  not  a  crime  in 

England,  82. 
tliough  such  contracts  may  not  be  enforced,  82. 
such  a  contract  held  criminal  in  New  York  in  People  v.  Sheldon, 

135. 
and  by  Supreme  Court  in  Trans- Missouri  F.  A.  case,  135. 
these  decisions  irreconcilable  with  previous  authorities,  135. 
"  public  interest"  in  freedom  of,  157. 
contracts  to  prevent,  enforced  in  New  York,  159. 


GENERAL   INDEX.  197 

Conspiracy, 

Hawkins'  definition  of,  44. 

Blackstone's  definition  of,  90. 

definition  of  crime  as  applied  to,  149. 

of  workmen  to  raise  price  of  labor,  153. 

definition  of,  156. 

Pettibone  v.  United  States,  156. 

none  in  People  v.  Slieldon,  157. 

the  true  doctrine,  190,  191. 
"  Conspiracies  to  commit  acts  injurious  to  trade  or  commerce," 

combinations  to  raise  prices  so  classified,  89. 

Blackstone's  definition  of  conspiracy,  90,  190. 

no  mention  of  conspiracies  in  restraint  of  trade,  90. 

such  combinations  not  indictable  conspiracies  at  common  law,  91. 

English  statutes  as  to,  never  part  of  our  law,  96,  137. 

New  York  statute  of  conspiracy,  109,  110. 

People  V.  Fisher,  110. 

the  source  of  later  heresies  in  the  law,  110. 

but  sound  as  to  the  point  decided,  112. 

not  an  authority  that  mere  combination  to  raise  wages  is  a  crime, 
113,  190. 

Interference  with  legal  rights  of  others  essential  to  the  crime,  113. 

amendment  of  1870,  114. 

did  not  change  the  common  law,  115. 

departure  from  the  law  in  People  v.  Sheldon,  135. 

unsound  interpretation  of  the  statute  in  that  case,  138. 

meaning  of  the  phrase  "  act  injurious  to  trade,"  140. 

the  construction  given  to  it  in  People  v.  Sheldon,  140. 

People  V.  North  River  Sugar  Refg.  Co.,  contrasted,  169. 
Corporations, 

the  best  means  of  employing  large  capital,  183. 

the  advantages  of,  to  society,  186. 
Crime, 

essentials  of,  146. 

involves  violation  of  legal  right,  146. 

attempts  to  commit,  146. 

Blackstone's  definition,  147. 

Stephen's  definition,  148. 

modification  of  the  latter,  149. 

apparent  exception,  149. 

definition  applied  to  conspiracy,  149. 
Demand  and  Supply,  Law  of,  5. 

makes  legislative  interference  with  prices  needless,  5. 
Economic  aspects,  179. 
English  law, 

to-day  favors  freedom  of  owner's  rights  to  fix  prices,  3. 

many  early  statutes  restricting  that  right,  9. 


198  GENERAL   INDEX. 

Engrossing, 

of  butter  and  cheese,  prohibited  ;  penalty  therefor,  38. 

(See  Forestalling,  etc.) 
Food, 

prices  of  to  be  reasonable,  13. 
Forestalling,  Regrating  and  Engrossing,  37. 

made  crimes  by  early  statutes,  38. 

exceptions,  40. 

forestalling  defined,  39. 

regrating  defined,  39,  40. 

engrossing  defined,  40. 

attempt  to  raise  prices  constituted  the  crime,  40. 

no  distinction  between  acts  of  individuals  and  of  combinations,  40. 

examples  of  statutes  against,  38,  39,  41. 

effect  of  such  statutes,  to  abolish  middlemen.  41. 

statutes  repealed,  1772,  48. 

intent  to  abolish  oflenses  also,  48. 

but  Rex  V.  Waddington,  contra,  48. 

offenses  expressly  abolished,  1844,  48. 

enumerated  by  Blackstone  as  "  Offences  against  Public  Trade," 
91,  92. 

English  statutes  as  to,  never  part  of  American  law,  96-98. 

never  crimes  here  except  under  certain  Revolutionary  statutes,  98, 
189. 

early  Massachusetts  statute  against,  108. 
Freedom  of  Contract,  152. 
Handicraftsmen, 

to  use  but  one  trade  or  "  mystery,"  23. 

goldsmiths'  work  regulated,  23. 

clothiers'  work  regulated,  34. 
Indictment, 

for  combinations  to  raise  prices,  very  few,  3,  46,  49. 

under  New  York  statute  of  conspiracy,  110. 

People  v.  Fisher,  110. 
Interpretation, 

of  statutes  changing  the  common  law,  138. 

Tex.  &  Pac.  R.  R.  Co.  v.  Interstate  Commerce  Comn.,  191. 
Interstate  Commerce, 

Act  examined,  171. 

considered  in  connection  with  "  Anti-Trust"  Act,  173. 
Labor, 

right  to  fix  prices  of  one's  own,  153. 

and  to  combine  for  that  purpose,  153. 

Commonwealth  v.  Hunt,  153. 
Laborers,  Statutes  op,  9,  15. 

everypersou  bound  to  serve  when  required,  10,  27,  28,  29. 

wages  fixed,  11,  16. 


GENERAL   INDEX. 


199 


penalty  for  taking  more  than  lawful  wage,  11,  13,  19. 

penalty  for  giving  to  beggai-s,  13. 

found  inadequate  and  superseded,  24,  27. 

hours  of  labor  fixed,  29. 

certain  laborers  not  to  abandon  work  until  completed,  30. 
Manufactures, 

of  cloths,  length,  breadth  and  quality  regulated,  35. 

of  worsteds,  inspector  to  ordain  rules  respecting,  36,  37. 
Monopolies, 

enumerated    by    Blackstone    among    "  Offences    against    Public 

Trade."  92. 

and  said  by  him  to  include  combinations  to  raise  prices,  92,  94. 

but  not  so  with  accuracy,  94,  95. 

defined,  95. 

not  unlawful  until  21  Jac.  I.,  95. 

early  Massachusetts  statutes  against,  101,  108. 

a  ground  for  decision  below  in  "  Sugar  Trust  case,"  169. 

but  not  approved  in  Court  of  Appeals.  169. 

provisions  of  "  Anti-Trust"  Act  as  to,  174. 

effects  of,  on  prices,  181. 

proposed  amendment  to  Tariff  Act  of  1897,  as  to,  192. 
Necessity,  Articles  of, 

basis  of  attempted  distinction  in  People  v.  Sheldon,  142. 

difficulty  of  determining  what  are.  143. 

no  sound  legal  basis  for  such  distinction,  143,  146, 
Offences  against  Public  Trade, 

Blackstone's  enumeration  of.  91-93. 

legal  injury  involved  was  the  "  enhancing  prices,"  94,  189, 

this  offence  same  whether  by  individual  or  by  combination,  94. 

English  statutes  as  to,  never  part  of  our  law,  96. 

but  were  in  minds  of  drafters  of  our  early  statutes,  109. 

(See  "  Prices.") 

no  conviction  reported  in  this  country  under  those  statutes,  109. 

Prices, 

statutory  regulation  of.  in  early  statutes,  2,  4,  9. 

raising  of,  by  individuals  or  combinations,  a  crime,  2. 

(conspiracies  to  raise,  2. 

statutes  fixing,  examples  of,  10,  12,  16,  21,  24. 

enhancing,  by  engrossing  merchandise,  forbidden,  21. 

abandonment  of  attempts  to  fix  definite  prices  by  statute,  26. 

but  authority  given  to  justices  of  peace,  etc.,  to  fix  prices  of  labor. 

26,  30,  31. 
of  merchandise,  legislation  to  prevent  raising  of,  37. 
attempts  to  ra'se,  constituted  crimes  of  engrossing,  etc.,  40. 
the  same  whether  act  of  individual  or  combination,  40,  83. 
statutes  to  keep  prices  up,  examples  of,  42. 
combinations  to  raise,  made  criminal  by  early  statutes.  43. 


200  GENERAL   INDEX. 

(See  combinations  to  raise  prices.) 

right  of  owner  to  fix  his  own  price  fully  established  in  England,  83. 

combinations  to  raise,  never  criminal  at  common  law,  83. 

though  such  an  agreement  might  not  be  enforced,  83. 

English  statutes  fixing,  never  part  of  our  law,  96. 

early  American  attempts  to  control,  by  statute,  98. 

Resolutions  of  Congress  of  Nov.  23,  1777,  98. 

New  York  statute  pursuant  to  the  above,  100. 

repealed  the  same  year,  100. 

similar  experience  in  New  England,  100. 

Providence  resolutions  of  Dec.  25,  1776,  101. 

Massachusetts  statutes  pursuant  to  above,  101-107. 

logical  in  that  they  gave  the  public  the  right  to  buy,  105. 

difficulty  of  enforcing  recognized,  107. 

repealed  for  their  futility,  108. 

contract  to  fix  held  a  crime  in  People  v.  Sheldon,  135. 

of  "  articles  of  prime  necessity,"  142. 

seller's  right  to  fix  his  own.  143,  152. 

no  distinction  between  seller  of  labor  and  of  merchandise,  143. 

no  legal  right  to  buy  at  any  price  in  absence  of  a  statute  fixing, 
149. 

such  a  statute  would  be  unconstitutional.  150. 

Taylor  v.  Porter,  150. 

unless  State  can  fix,  there  is  no  legal  injury  in  owner's  fixing  his 
own,  153,  189. 

either  by  his  own  will  or  by  combination  with  others,  153. 

no  legal  wrong  in  buyer  having  to  pay  higher,  158,  188. 

effects  of  monopolies  on,  181. 

the  proper  regulation  of,  183. 

statutory  control  unnecessary,  187. 

and  inadequate,  187. 
Property, 

no  right  to  take  for  private  use,  150. 

the  old  statutes  fixing  prices  practically  did  this,  153. 

suspension  of  this  rule  in  times  of  stress,  188.  ■* 

Public  and  Private  Employments, 

distinction  between,  in  regard  to  State  control,  6. 

opposite  tendencies  of  the  law,  7. 

control  of  public  employments  a  necessity,  7. 

its  province  increasing,  7. 
Public  Employments, 

right  of  State  control  now  fully  established,  84. 

distinction  between,  and  private  employments,  84. 

Munn  V.  People,  84. 

number  of,  at  first  small,  85. 

chiefly  incident  to  use  of  public  highways,  85. 

innkeepers,  85. 


GENERAL  INDEX. 


201 


carriers,  85. 

English  statutes  as  to  carriers,  86-88. 

course  of  English  law  as  to.  reverse  of  course  as  to  private  em- 
ployments, 88. 
same  with  American  law,  117. 
great  increase  in  control  of,  117. 
due  to  increase  in  number  of,  117. 

and  because  property  acquired  by  eminent  domain,  117. 
large  number  of  statutes  regulating  railroads,  117. 
also  cases  of  intervention  of  courts  by  mandamus,  118. 
People  V.  Nctc  Fork  Central,  etc.  R.  E.  Co.,  118. 
Munn  V.  People,  124. 

warehouses  there  in  question  virtually  part  of  the  highways,  129. 
New  York  statute  creating  Railroad  Commissioners,  130. 
Railroads, 

(See  "  Common  Carriers  ;  Public  Employments"). 
Reguating, 

(See  "  Forestalling,"  etc.). 
Restraint  of  Trade, 

English  law  as  to  contracts  in,  50. 
may  not  be  enforced,  49,  83. 
but  not  criminal,  49,  82. 

and  not  violations  of  legal  rights  of  others,  49,  83. 
JIdogul  S.  S.  Co.  V.  McGregor,  50. 

American  courts  have  even  enforced  such  contracts,  159. 
Diamond  Match  Co.  v.  Roeber,  160. 
Leslie  v.  Loi'illard,  164. 
Ihde  v.  Gross,  166. 
MattheioB  v.  Associated  Press,  167. 
People  V.  North  River  Sugar  Ref'g   Co.,  168. 
Royal  Commission  on  Master  and  Servant  Act, 

extract  from  report,  156. 
Servants, 

diet  and  apparel  of,  regulated,  23. 
unmarried  under  thirty,  must  serve  when  required,  28. 
not  to  be  put  away  except  for  reasonable  cause,  28. 
nor  without  one  quarter's  warning,  28. 

women,  wages  and  service  of,  to  be  fixed  by  justices,  etc.,  33. 
Stephen,  Serjeant, 

definition  of  crime,  148. 
modification  thereof,  149. 
Trusts  and  Monopolies, 

recent  revival  of  ancient  fears  respecting,  4. 

modern  legislation  on  same  line  with  ancient,  37,  192. 

provisions  of  "  Anti-Trust"  Act  as  to,  174. 

no  basis  for  alarm  on  account  of,  180. 

proposed  amendment  to  Tariff  Act  of  1897,  as  to,  192. 


202  GENERAL   INDEX. 

Wages, 

To  be  fixed  by  certain  officers,  30,  31. 

penalties  for  giving  or  receiving  higher  than  lawful,  33. 

exceptions  of  day  laborers  in  harvest,  32. 

authority  of  officers  to  fix  wages  extended,  35. 

as  a  result  of  inefficiency  of  previous  statute,  35. 

these  statutes  not  repealed  until  1875,  35. 

combinations  to  raise  or  reduce,  not  a  crime  at  common  law,  97. 

Commonwealth  v.  Hunt,  96. 

Commonwealth  v.  Carlisle,  97. 

Bishop's  Criminal  Law,  97. 

New  York  Statute  as  to  conspiracy  and  decisions  thereunder,  109, 110. 

(See  "  Conspiracy."; 


Whole  number  of  pages  218. 


AA    000  889  105    3 


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